Nandlal Das & Anr vs The State Of Bihar on 6 February, 2014

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Patna High Court

Nandlal Das & Anr vs The State Of Bihar on 6 February, 2014

1. This appeal has been filed against the judgment of conviction dated 06-08-2011 and order of sentence dated 09-08-2011 passed by Ad-hoc Additional Sessions Judge, VIth Saharsa in Session Trial No.43 of 2007 convicting both the appellants, namely, Nandlal Das, Sanday Das for an offence punishable under Section 304(B)/34, 498(A), 323 IPC, 4 of Do wry Prohibition Act and directed each of them to undergo R.I. for seven years, R.I. for three years as well as fine of Rs.2000/ - in default 2. thereof to undergo imprisonment of three months additionally, R.I. for one year, R.I. for two years as well as fine of Rs.3000/- in default thereof to undergo imprisonment of three months additionally respectively with a further direction to run the sentences concurrently.

2. PW-5, Bhutto Paswan gave his far dbeyan on 08.04.2006 at about 10:30 A.M. at village -Malandha divulging therein that on the same day at about 08:00 A.M. while he was at his house, he came across the news with regard to death of wife of Sanjay Das on account of severely beating in the preceding night. He rushed to the house of Sanjay Das and found the dead body lying at Verandah in front of East faced room. Froth was coming. Sanjay Das was absconding. The villagers on query have divulged that that there was quarrel amongst the family members and on account thereof, the mother of Sanjay Das had left for her another residence at village -Naya Nagar. He also came to know from the villagers with regard to lecherous activity of the Sanjay Das with the women who used to come at his flour mill and s o the informant was of the view that in connivance with other family members, she (deceased) was assaulted as well as 3. administered poison resulting her death.

3. On the basis of the aforesaid fardbeyan, Basnahi P.S. Case No.16 of 2006 was registered and investigation was taken up. At first instance charge sheet was submitted only against these two appellants who faced the trial got convicted and sentenced the subject matter of present appeal. Latter on supplementary charge sheet was filed against Meena Dev i on the basis of which Sessions Trial No.50 of 2009 was registered. Both the Sessions Trials were independently conducted disposed of by two distinct judgments but on the same day having finding of conviction and sentence against all of them having challenged under two different appeals. However, there been analogous hearing but are disposed of by two distinct judgment.

4. The defence of the appellant as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C . along with examination of four DWs is of complete denial of the occurrence. It has further been pleaded that after coming to know about ailment of deceased she was being carried to hospital and during midst thereof, she died.

5. Eight PWs have been examined on behalf of prosecution out of whom PW-1 is Manikant Das, father of deceased, PW-2 is Savitri Devi, mother of deceased, PW -3 is Santosh Kumar Das, brother-in-law of deceased, PW-4 is Dr. Srinath Srivastav who had conducted postmortem report, PW-5 is Bhuto Paswan, (informant) who became hostile, PW-6 Bechan Yadav who also became hostile, PW-7 Shashi Bhushan Pathak a formal witness who had exhibited the viscera report, PW -8 is Sikandra Yadav, who had exhibited the other documents for want of examination of I.O. Side by side there happens to be Ext. - 1 PM report, Ext.-2 memo no.957, Ext.-3 attested visra report, Ext.-4 the FIR, Ext.-5 formal FIR and Ext.-6 the charge sheet. At the end of appellant four DWs have been examined. DW-1 is Bijendra Yadav, DW-2 is Arjun Yadav, DW-3 is Subhash Prasad Yadav and DW -4 is Nawal Kishore Yadav. No exhibit has been made on behalf of appellant.

6. The learned counsel for the appellants while assailing the judgment of conviction and sentence rendered by the learned lower court has submitted that the learned lower court during course thereof, proceeded in 5. mechanical manner and thus failed to apply judicious mind. It has further been submitted that PW -1, PW-2 and PW-3 are interested, partisan witness. They have developed their evidence before the court whereunder demand of Rs.20,000/- has been introduced. The learned lower court should have considered that by way of introducing the theory of demand for the first time in court could not be accepted. In likewise manner, the learned lower court also failed to appreciate that there was no cogent, reliable definite evidence that deceased was subjected to cruelty for the demand of dowry. Even accepting the plea for a moment, not admitted that there was demand of Rs.20,000/-, which happens to be own case of the prosecution, the same was not in lieu of dowry rather it was a demand for establishment of a business which does not fall within the ambit of dowry so defined under Section 2 of the Dowry Prohibition Act.

7. Then it has been submitted that there happens to be positive assertion in the fardbeyan by PW -5 that deceased was severely assaulted in the preceding night, which is found completely demolished in the background of Ext.-1, the postmortem report in consonance with the 6. evidence of doctor who did not find any ante mortem external injury over the dead body. The PW -1, PW-2, PW- 3 are not an eye witness to occurrence and on account thereof, their evidence is also not found supportive on that very score. So submitted that none of the s ections whereunder conviction and sentence have been recorded by the learned trial court, is found properly substantiated from the aforesaid quality of evidence so adduced. It has further been submitted that I.O. has not been examined and on account thereof, the defence is found prejudiced. To buttress his submission the learned counsel for the appellant also relied upon AIR 1996 SC 3506, AIR 1997 SC 538, (2010) 1 SCC 750.

8. There also happens to be alternative argument in the background of the fact that a t the time of inception of trial, charge was framed under Section 302, 498(A), 323 IPC as well as 4 of the Dowry Prohibition Act. It neither happens to be a case of murder nor of suicide because of the fact that prosecution suffers from inherent lacuna. From evidence of Dr. Srinath (PW -4) coupled with Ext.-1 postmortem report, it is evident that no external injury was found much less the cause of death was not 7. ascertained by the doctor himself. The cause of death, as is evident is found divulged by way of e xhibit-3, the attested copy of viscera report which neither happens to be the primary evident nor the secondary evidence and further, is not found fitted with under definition of public document. So submitted that at the present stage also no other option is found available save and except adjudicating upon the finding so recorded by the learned trial court whereupon instant appeal is fit to be allowed.

9. On the other hand the learned Additional Public Prosecutor while sticking upon the finding recorded by the learned trial court has submitted that death is there. Death happens to be within seven years of marriage. Death was in abnormal circumstance. Before death of deceased there was demand and for that PW -1, 2 and 3 consistently supported and for procurem ent of the same, deceased was treated with cruelty as well as tortured. Though charge was framed under Section 302, 498(A), 323 IPC and 4 of the Dowry Prohibition Act. If the ingredients of 498(A) as well as 4 of the Dowry Prohibition Act is found fully pr oved along with death of deceased in abnormal circumstance with the fact that soon 8. before death deceased was tortured then in that event in terms of Section 222 of the Cr.P.C. conviction can be recorded and on account thereof, the finding of the learned lower court is found substantiated by cogent and reliable evidence.

10. After hearing rival parties as well as going through the evidence, it is apparent that there happens to be no controversy with regard to status of deceased Mamta to be wife of appellant Sanjay Das having married few months ago. There happens to be no controversy with regard to recovery of her dead body from her Sasural. At the time of recording of FIR as well as inquest, although the I.O. has not been examined there is conduciveness over froth was coming from his mouth as well as nostril. From the evidence of PW-4, the doctor who had conducted postmortem over the dead body of Mamta on 09 -04-2006 at 08:00 A.M. found presence of rigor mortis at both upper and lower limb. Bluish coloration o f face present. Froth found at nostril area as well as mouth area. Eyes closed. Bluish coloration of face present. Neither any external injury was found nor after dissection, internal injury was found and so viscera was preserved for 9. chemical examination. Time elapse since death was within 24 hours. However, the doctor had opined the death may be on account of poison. After receipt of attested copy of viscera report from the FSL Department, the doctor was recalled and on the basis of viscera report, he had opined the cause of death to be poison. The aforesaid viscera report happens to be Ext.-3 while the postmortem report is Ext.-1. It is further evident that aforesaid viscera report happens to be admissible in terms of section 293 of the Cr.P.C. and on acco unt thereof rightly been marked as an exhibit.

11. Now coming to the ocular evidence, it is evident that PW-1 the father of deceased, PW-2 is Savitri Devi, PW-3 is Santosh Kumar Das, brother -in-law of deceased have been examined on the factum of torture meted out by the deceased over fulfillment of demand of Rs.20,000/- at the hands of accused and that has been taken into account by the learned trial court to be one of the ingredients attracting application of Section 304(B) of the IPC. For better appreciat ion the evidence in verbatim is used below:

PW-1, Para-1 "eerk nsoh dks ,d lIrkg ls ekjfiV dj jgs Fks vkSj mlls dg jgs Fks fd cki 10. ls chl gtkj :i;k ekax dj ykvks fey dk dkjksckj c<+kuk gS vkSj ugha nsus ij nwljh 'kknh djsaxs rFkk tgj nsdj ekj nsxsA"

PW-2, Para-1 "esjh csVh 'kknh esa llqjky x;h FkhA og mlds 15 fnu ckn fonk gksdj esjs ?kj vk;h FkhA r cog dgh fd mlds ifr 20]000@& chl gtkj :i;k dkjckj c<+kus vkSj pqM+k dk e'khu [kjhnus ds fy, ekax jgs gS vkSj dgrs gS fd ugha nsus ij lat; nkl dh nwljh 'kknh djsxs vkSj tgj f[kyk dj rq>s tgj ns dj tku ej nsxsA"

PW-3, Para-1 "os yksx ;g Hkh cksy jgs Fks fd vfHk;qDr yksx chl gtkj :i;k e`frdk ls ekax jgs Fks fd iSlk uSgj ls ekax dj ykvks O;olk; djsxsA"

12. For the purpose of attracting Section 304(B) of the IPC the following ingredients are to be satisfied as has been held by the Hon‟ble Apex Court in Satvir Singh and others v. State of Punjab and another reported in (2001) 8 SCC 633.

"The essential components of Section 304 - B are: (i) Death of a woman occurring 11. otherwise than under normal circumstances, within 7 years of marriage. ( ii) Soon before her death she should have been subjected to cruelty and harassment in connection with any demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment, can be presumed to be guilty of offence under Section 304-B. To be within the province of the first ingredient the provision stipulates that "where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances". It may appear that the former limb which is described by the words "death caused by burns or bodily injury" is a redundancy because such death would also fall within the wider province of "death caused otherwise than under normal circumstances". The former limb was inserted for highlighting that by no means death caused by burns or bodily injury should be treated as falling outside the ambit of the offence".

Because of the fact that death is found within seven years of marriage, and as the death is found due to poison which divulges other than normal circumstance, hence first ingredient of Section 304(B) is found satisfied. 12.

13. Now the only question remains wh ether the deceased was subjected to cruelty or harassment by the appellant and her family members for or in connection with demand for dowry. As per explanation appended to sub-section 1 of Section 304(B) of the IPC denotes dowry having similar meaning that of Section 2 of Dowry Prohibition Act, 1961 which reads as under: -

"2. Definition of "dowry" - In this Act "dowry" means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, b ut does not include dower or mahr in the case of persons to whom the Muslim Personal Law (shariat) applies.

14. Some sort of demand, as in the present case for expansion of business, whether could attract and identify as dowry has been considered by the Hon‟ble 13. Apex Court in Appasaheb & Anr. Vs. State of Maharashtra reported in AIR 2007 SC 763.

In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India vs. Garware Nylons Ltd. AIR 1996 SC 3509 14. and Chemicals and Fibres of India vs. Union of India AIR 1997 SC 558). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained."

15. Now coming to the facts of the case as stated above, it is apparent that the demand of Rs.20,000/ - at the hands of appellant was not in connection with the marriage or relating to marriage of the spouse. Therefore, the aforesaid demand did not come within the ambit of Section 2 of Dowry Prohibition Act.

16. Apart from this, it is apparent from the lower 15. court record that appellants were not at all charged for an offence punishable under Section 304(B) of the IPC whereunder conviction has been recorded rat her they were charged for an offence punishable under Section 302/34, 498(A), 323 of the IPC and 4 of the Dowry Prohibition Act.

17. The Code provides an opportunity to the court to convict an accused for lessor offence than the offence whereunder he has been charged. It is also apparent that some sort of controversy on this very score on account of non-framing of charge for the offence so traced out did not affect the ultimate finding in terms of Section 464 of the Cr.P.C. more over the court should be cau tious that the offences whereunder accused is going to be convicted are minor offence, and further no real, substantial prejudiced is caused to the convict. So far offence punishable under Section 302 IPC is concerned, it is applicable only in case having fulfillment of ingredient of Section 300 IPC while so far Section 304(B) IPC is concerned, the ingredients are provided therein itself. Apart from this, under Section 302 of the IPC there happens to be no scope for presumption while proceeding 16. with a trial punishable under Section 304(B) of the IPC, presumption is there though subject to rebuttal in terms of Section 113(B) of the Evidence Act. By non -framing of charge under Section 304(B) of the IPC, the accused happens to be unaware with the presence of ma ndate of law under the guise of Section 113(B) of the Evidence Act which found more stringent than any other provisions of the Evidence Act. Not only this, from parallel scrutiny of Section 302 as well as 304(B) IPC, it is evident that while being prosecuted under Section 302 IPC the accused has to simply deny as the burden lies enclosing upon the prosecution, while under Section 304(B) apart from burden having on prosecution, if discharged properly, the accused is under obligation to rebut the same otherwi se presumption will be formed against him. Even the cause of death under Section 300 as well as 304(B) of the IPC are not the same and similar. In the aforesaid background, the conviction for an offence punishable under Section 304(B) in absence of having the charge instead of Section 302 of the IPC is not at all found permissible in the eye of law and on account thereof the approach of the learned lower court is found deficient one.

17.

18. The aforesaid issue has been taken into account by the Hon‟ble Apex Court in Tarkeshwar Sahu v. State of Bihar (Now Jharkhand), reported in (2006) 8 SCC

560.

"26. A three-Judge Bench of this Court in Shamnsaheb M. Multtani v. State of Karnataka (2001) 2 SCC 577 had an occasion to deal with Section 222 of the Code of Criminal Procedure. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The relevant discussion is in paras 16, 17 and 18 of the judgment, which read as under: (SCC p. 584) "16. What is meant by „a minor offence‟ for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be 18. regarded as minor offence vis-à-vis the other offence.

17. The composition of the offence u nder Section 304-B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis -à-vis the latter. However, the position would be different when the charge also contai ns the offence under Section 498-A IPC (husband or relative of husband of a woman subjecting her to cruelty). As the word „cruelty‟ is explained as including, inter alia, „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‟.

18. So when a person is charged with an offence under Sections 302 and 498 -A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary 19. for the offence under Section 304 -B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge?"

19. Lastly it has been held in Shamnsaheb M. Multtani v. State of Karnataka reported in (2001) 2 SCC

577.

"31. Now take the case of an accused who was called upon to defend only a charge under Section 302 IPC. The burden of proof never shifts onto him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under Section 304 - B IPC, as he was defending a charge under Section 302 IPC alone, would it not lead to a grave miscarriage of justice when he is 20. alternatively convicted under Section 304 -B IPC and sentenced to the serious punishment prescribed thereunder, which mandates a minimum sentence of imprisonment for seven years.

32. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration: If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304 -B IPC read with Section 113-B of the Evidence Act. But if the murder of his wife was actually committed either by a dacoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304-B IPC. But if the husband is charged only under Section 302 IPC he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against 21. him and claim an order of acquittal.

34. In such a situation, if the trial court finds that the prosecution has failed to make out the case under Sect ion 302 IPC, but the offence under Section 304 -B IPC has been made out, the court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Section 304 -B IPC would lead to real and serious miscarriage of justice. Even if no such count was included in the charge, when the court affords him an opportunity to discharge his burden by putting him to notice regarding the prima facie view of the court that he is liable to be convicted under Section 304-B IPC, unless he succeeds in disproving the presumption, it is possible for the court to enter upon a conviction of the said offence in the event of his failure to disprove the presumption.

36. To facilitate the trial court to dispose of the case afresh against the appellant in the manner indicated above, we set aside the conviction and sentence passed on him by the High Court and remand the case to the trial court".

22.

20. Thus, the judgment of the learned trial court is set aside. Appeal is allowed. The matter is remitted back to the learned lower court to hear both the parties afresh and will deliver the judgment subsequent thereof, in accordance with law.

(Aditya Kumar Trivedi, J.) PATNA HIGH COURT DATED, THE 6th day of Feb, 2014 PRAKASH NARAYAN __ |__| U |__| T

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