Jharkhand High Court
Suresh Sah And Ors. vs State Of Bihar (Now Jharkhand) on 11 March, 2004
Equivalent citations: [2005(2)JCR419(JHR)]
Author: Vishnu Deo Narayan
Bench: Vishnu Deo Narayan
JUDGMENT Vishnu Deo Narayan, J.
1. This appeal at the instance of the appellants has been directed against the impugned judgment and order dated 27.2.1999 and 13.3.1999 respectively passed in Sessions Case No. 45 of 1998 by Sri Hari Shankar Prasad, Sessions Judge, Dumka, Santhal Pargana whereby and whereunder the appellants were found guilty for the offence punishable under Section 498A and 304B of the Indian Penal Code and they were accordingly convicted and sentenced to undergo R.I. for ten years each under Section 304B of the Indian Penal Code. However, no sentence was awarded to them for the offence under Section 498A of the Indian Penal Code.
2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 3) of PW 2, Suresh Sah, the father of Lucho Devi, the deceased in this case, recorded by I.O., PW 7 S.I. Suresh O/C Saraiyahat P.S. on 31.7.1997 at 10.00 hours at the house of the appellant in village Titmo P.S. Saraiyahat District Dumka regarding the occurrence which is said to have taken place between 30.7.1997 and 31.7.1997 in the house of the appellant and a case was instituted by drawing of a formal FIR (Ext. 5) on 31,7.1997 at 13,30 hours and the fardbeyan and the formal FIR have been received on 2.8.1997 in the Court empowered to take cognizance.
3. The prosecution case, in brief, is that the marriage of Lucho Devi, daughter of the informant (PW 2) was solemnized with appellant Suresh Sah in the month of May, 1996 in accordance with Hindu religion and rites and a demand of wrist watch and cycle was made in the said marriage which could not be fulfilled because of the poverty of the informant. It is alleged that the informant had gone to see his daughter, Lucho Devi at her matrimonial home in village Titmo and she was insisting him to take her to his house and she was weeping and she told him that she is assaulted by all the appellants due to non-fulfilment of their demand of wrist watch and cycle and she is also not provided with food by them and she is asked by them to make the demand of cycle and wrist watch from her father. It is further alleged that he tried to make Lucho Devi understand and also requested the appellants not to assault and torture her and thereafter he returned to his village Bhikhanpur P.S. Bousi District Banka. The prosecution case further is that he was uprooting paddy seedlings in his field in the morning of 31.7.1997 and PW 4, Bhawesh Sah, the son of his sarhoo and resident of village Titmo came there and told him that Lucho Devi has been done to death by the appellants by throttling her on 30.7.1997 and they have fled away from their house closing the door from outside and on this information he along with his other family members came to the house of the appellants and found the door of their house closed and after opening the door he went inside the house and found Lucho Devi lying dead in the middle room of the house and on query from neighbours of the appellant he learnt that she has been done to death by the appellants after assaulting her on 30.7.1997 itself. Lastly it has been alleged that she has been done to death as the demand of dowry made by the appellants was not fulfilled.
4. The appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and they have been falsely implicated in this case on mere suspicion and the deceased has committed suicide.
5. The prosecution has in all examined seven witnesses to substantiate its case. PW 2, Suresh Sah, the informant, is the father of the deceased of this case and PW 1, Utma Devi is his wife. PW 4, Bhavesh Sah is the son of sarhoo of the informant resident of village Titmo, PW 5 Jitendra Kumar Sah is a witness on the inquest report (Ext. 4) and his signature thereon is Ext. 1/1. Ext. I is the signature of the informant of the fardbeyan. PW 3, Parasuram Sah has been tendered in this case by the prosecution. PW 6 Dr. C.P. Sinha is one of the members of the medical board constituted for the post-mortem examination on the dead body of the deceased which consisting of Dr. B.K. Sinha and Dr. R.K. Pandey and he has conducted the post-mortem examination on the dead body of the deceased along with them and the postmortem report in respect thereof per his pen in Ext. 2. PW 7, Sudesh is the I.O. of this case. No oral pr documentary evidence has been brought on the record on behalf of the defence.
6. Relying upon the testimony of PW 2, the informant and PW 1 read with the medical evidence, the learned Court below came to the finding that the death of the deceased is an unnatural death in her matrimonial home due to asphyxia as a result of strangulation after one year of her marriage and she was being tortured for the fulfilment of demand of wrist watch and cycle in dowry and when the said demand was not fulfilled she was done to death and accordingly found all the appellants guilty and convicted and sentenced them as stated above.
7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellants that the learned Court below did not properly scan and scrutinize the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants. It has also been contended that all the witnesses of the prosecution are hearsay witnesses and there no iota of legal evidence on the record that the deceased was subjected to cruelty or harassment soon before her death by the appellants and PW 4 has categorically deposed that the deceased was living happily in her matrimonial home and there was never a quarrel between the deceased and the appellants in his presence and he has also never given any information regarding quarrel between them to her father and he had gone to the appellant on information regarding the death of the deceased and he had found all the appellants and other members of their family weeping there and the evidence of PW 4, therefore, clearly establishes the fact that there was no question of torture or cruelty perpetrated on the deceased by the appellants soon before her death and the deceased has committed suicide by hanging herself and PW 4 has also deposed that his son had informed him at 16.00 hours on the day of the occurrence when he was in the field that the deceased had hanged herself. It has also been contended that appellants stand seriously prejudiced due to non-examination of the son of PW 4 Bhavesh Sah in this case. Relying upon the ratio of the case of Kans Raj v. State of Punjab and Ors., 2000 (3) PLJR 68 (SC), it has been submitted that in the present case there is nothing on the record to show that the deceased was treated with cruelty or harassed for the fulfilment of demand of dowry soon before her death and in absence of any such evidence it is not permissible to take recourse to legal presumption as envisaged under Section 113B of the Evidence Act. It has also been contended that the evidence of PW 2 and PW 1 have no credence in respect of treating the deceased with cruelty as deposed by them when they had met with the deceased two months ago and they are highly interested and partisan witnesses having animus to depose falsely against the appellants. Further reliance has been placed in the ratio of the case of Chandra Rai and Ors. v. The State of Bihar, 1998 (1) PLJR 295 and Digeshwar Rana and Ors. v. The State of Bihar, 2000 (4) PLJR 392. Lastly it has been contended that appellant Dijal Devi, GugU Sah and Chandra Sah, who are mother, father and brother respectively of the appellant have been falsely roped in this case without any cogent evidence of their involvement in the alleged occurrence simply due to the fact that they reside in the house in which the deceased has committed suicide by hanging herself and there is no iota of legal evidence on the record and these three appellants had also connived with the appellant Suresh Sah or had participated with him in the alleged occurrence and thus their conviction in this case is without legal evidence and totally unwarranted in the facts and circumstances of this case. In support of his contention, the ratio of the case of Madan Sah and Ors. v. The State of Bihar, 1997 (2) PLJR 838, was referred to.
8. In contra learned APP has submitted that the death of the deceased is an unnatural death in her matrimonial home within seven years of her marriage and there were several external injuries of her dead body and the medical witness has opined that the death of the deceased is due to asphyxia as a result of strangulation and PW 1 and PW 2 in their evidence have categorically deposed regarding the demand of dowry by the appellants and treating the deceased with cruelty and harassment for the fulfilment of the said demand soon before her death and there is legal evidence on the record to substantiate the prosecution case and the learned Court below has properly weighed and considered the evidence and has rightly came to the finding of the guilty of the appellant and thus there is no illegality in the impugned judgment.
9. It will admit of no doubt that Lucho Devi, the deceased of this case, is the lawfully wedded wife of appellant Suresh Sah and their marriage was performed in accordance with Hindu religion rites in the month of May, 1996. Appellants Gugali Sah Dijal Devi and Chandi Sah are the father mother and full brother respectively of appellant Suresh Sah and the deceased was residing in her matrimonial home leading conjugal life with her appellant husband and along with other appellants aforesaid in village Titmo. The death of the deceased has taken place on 30.7.1997 in her matrimonial home and on information said to have been given to the informant by PW 4 regarding her death the informant came to her matrimonial home and has found the door of the house closed and after opening it when he entered inside the house he found the dead body of the deceased lying in the middle room of the said house. The post-mortem examination on the dead body of the deceased was conducted by the medical board consisting of three Doctors and PW 6, Dr. C.P. Sinha is one of them. PW 6 has deposed to have conducted the post-mortem examination on the dead body of the deceased along with Dr. B.K. Sinha and Dr. R.K. Pandey on 1.8.1997 at 10.00 hours and has found the following ante mortem injuries on the dead body of the deceased.
"(i) Abraison 1" x 1/2" over lateral side of left later in the middle.
(ii) Bruise 1" x 1" over the medical side of left knee.
(iii) Multiple abraisons over both shoulders in an area of 2" x 2"
(iv) Abraison 1-1/2" x 1/2" over front of neck.
(v) A lecture mark blackish in colour over hole of upper part of neck, mostly permanent in front of neck with a gap behind right ear, and diametre of legature mark is 1/2" thick.
The medical witness has further deposed that on dissection there was aecchymosis underneath the legature mark and there was fracture of thyroid cartridge, larynx, pharynx trachea and oesophagus was found congested and in the opinion of the medical board the death of deceased is due to asphyxia as a result of strangulation and injury No. (i) to (iv) aforesaid have been caused by hard and blunt substance and injury No. (v) is by strangulation. The inquest report (Ext. 4) shows that it was prepared in the house of the appellant where the dead body was found. From the evidence of the medical witness there is no doubt that death of the deceased is not a natural death. It appears from the medical evidence referred to above that the death of the deceased cannot be said to be accidental or suicidal death. The existence of injury no (i) to (iv) on the dead body of the deceased totally rules out the possibility of suicide by the deceased. However, the death of the deceased stands surrounded by suspicion circumstances which has occurred otherwise than under normal circumstances during the subsistence of her marriage with appellant Suresh Sah while she was living with him and other appellants in her matrimonial home where her dead body was found. For drawing the presumption as mandated under Section 113B of the Evidence Act in this case regarding the death of the deceased it has to be proved by legal evidence on the record that the death of the deceased has occurred within seven years marriage and she was subjected by the appellants to cruelty or harassment, soon after the death for or in connection with demand for dowry.
10. In order to attract application of Section 304B, the essential ingredients are as follows :--
"The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) such 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 relatives of her husband;
(vi) such cruelty or harassment should be for or in connection with demand of dowry;
(v) such cruelty or harassment is shown to have been meted out to the woman soon before her death.
It is only when the aforementioned ingredients are established by acceptable evidence such death shall be called dowry death and the husband or his relatives shall be deemed to have caused her death. Before adverting to the evidence on record it is essential to mentioned that there is averment in the fardbeyan (Ext. 3) of the informant that at the time of her marriage a demand for wrist watch and cycle was made which could not be fulfilled due to the poverty of the informant. The informant had come to the matrimonial home of the deceased two months prior to the occurrence where the deceased while weeping told him that the appellants assault and torture her and they do not provide her meal and she insisted the informant to take her to his house. PW 2, the informant has deposed that the marriage of the deceased was solemnized with appellant Suresh Sah one year prior to the occurrence and he had made a commitment to provide wrist watch cycle and radio to appellant Suresh Sah in the said marriage but the aforesaid articles could not be delivered to him due to his poverty. He has further deposed that after the marriage the deceased went to her matrimonial home and there was also persistent demand of the aforesaid articles and the deceased was also told by appellant Suresh Sah to bring those articles from her father. His evidence is further to the effect that he had gone to her matrimonial home to meet her and she started weeping and stated regarding the aforesaid demand by the appellants and also told thereafter that the appellants quarrel with her and he requested appellant Gugali Sah that he will provide those articles, the moment he has money for purchase of those articles and at this appellant Gugali Sah told him that he will not keep the deceased in his house. In paragraph 8 of his cross-examination he has deposed that the negotiation of the marriage was finalized between him and appellant Gugali Sah and in the said negotiation he had agreed to provide the aforesaid articles in the marriage and lagan patrica was also prepared at the time of her marriage but there was no reference regarding delivery of the aforesaid articles therein. In paragraph 12 and 13 of his cross-examination he has deposed that the deceased had come to his house twice and thrice after her marriage with her appellant husband and she went back to her matrimonial home in his company. He has also deposed to have visited the matrimonial home of the deceased 15 or 20 times in the year of the marriage of the deceased. He has also deposed that he used to come to matrimonial home of the deceased on invitation of appellant Gugali Sah. PW 1 has deposed that her deceased daughter has told her that appellant Suresh Sah used to demand wrist watch, cycle and radio and other appellants also used to make the demand for the aforesaid articles. However, in her evidence she has not disclosed as to when she was told by the deceased in respect thereof. She has also not disclosed regarding the deceased being subjected to cruelty or harassment for or in connection with the said demand. Both the witnesses have further deposed that PW 4 Bhavesh Sah informed them about the death of the deceased caused by the appellants and on this information PW 1 had gone to the place of occurrence and saw the dead body of the deceased in the middle room of the said house after opening the door which was found closed when he had reached there. PW 4 has deposed that there was cordial relationship between the appellants and the deceased in her matrimonial home and never a quarrel had taken place between them in his presence. He has also deposed that he has never told the informant about any quarrel which has ever taken place between the deceased and the appellants- PW 4 is a resident of P.O. village and close relative of the information but he does not support the testimony of PW 2 regarding any torture perpetrated on the deceased for or in connection with the demand of dowry as deposed by PW 2. It, therefore, appears from the evidence of PW 2 that lastly about two months prior to the occurrence the deceased had to told the informant regarding torture and harassment perpetrated on her for or in connection with demand of dowry when the informant had met her in her matrimonial home and prior to that the informant had visited the matrimonial home of the deceased 15 to 20 times but on those occasions never a complaint was made to him by his deceased daughter regarding any cruelty or torture perpetrated on her for or in connection with demand of dowry. There is no evidence on the record brought by the prosecution to prove that soon before her death she was subjected to cruelty or harassment. There is nothing on the record to show that the deceased was treated with cruelty or harassed for the demand of dowry soon after her tragic end and in the absence of any such evidence, it is not permissible to take recourse to legal presumption under Section 113B of the Evidence Act. A reading of Section 113B of the Evidence Act along with Section 304B shows that there must be material to show that soon before the death of the deceased, she was subjected to cruelty or harassment. Prosecution has to rule out the possibility of natural and accidental death. The expression "soon before" is very relevant where Section 113B of the Evidence Act and Section 304B of the Indian Penal Code are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in the case presumption operates. Evidence in that regard has to be led by prosecution. "Soon before" is a relative term and it would depend upon circumstances of each case and no strait jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304B of the Indian Penal Code and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. In the case of Kans Raj (supra) it has been observed by the Apex Court.
"Soon before" is a relative term which is required to be considered under specific circumstances of each case and no strait jacket formula can be laid down by fixing any time limit. This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the expression "soon after" as used and understood in Section 114 illustration (a) and the Evidence Act. These words would imply that the interval should not be too long between the time of working the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry death, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a peculiar instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before the alleged such treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and like link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough."
In the case of Hira Lal and Ors v. State (Govt. of NCT) Delhi, AIR 2003 SC 2865, it has been observed by the Apex Court which runs thus :--
"A conjoint reading of Section 113B of the Evidence Act and Section 304B, IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to` out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113B of the Evidence Act and Section 304B, IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no srait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression 'soon before the death' used in the substantive Section 304B, IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114. Illustration (a) of the Evidence Act is relevant. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence."
Similar is the ratio laid down in the case of Chandra Rai (supra) and Digeshwar Rana (supra). In view of the evidence on the record it stands established in this case that the death of the deceased had taken place within seven years of her marriage in her matrimonial home and her death is unnatural death otherwise than in a normal circumstances and there was a demand of wrist watch and cycle in dowry made two months prior to the occurrence but there is no iota of legal evidence on the record to established the fact that soon before her death the deceased was subjected to cruelty or harassment by the appellants for the fulfilment of the said demand but the alleged demand is remote in time and has definitely become stale enough not to disturb the mental equilibrium of the deceased and as such the said demand is of no consequence in the facts and circumstances of this case. It is imperative for invoking the legal presumption under Section 113-B of the Evidence Act that soon before her death the deceased was subjected with cruelty or harassment for the fulfilment of demand for dowry soon before her death and in the absence of any such evidence it is not permissible to take recourse to legal presumption as envisaged in Section 113B of the Evidence Act. It is equally relevant to mention here that there is facile statement in the fardbeyan that order appellants besides the husband of the deceased had also demanded the dowry and PW 2 has deposed that the deceased had told him that her in-laws have also demanded the aforesaid articles but PW 2 in her evidence has not specifically name these appellants making the said demand from the deceased simply because the order three appellants were present and used to reside in the matrimonial home of the deceased along with appellant Suresh Sah it cannot be said that they had shared common intention or object with appellant husband to commit the dowry death of the deceased. The ratio of the case of Madan Sah (supra) supports the contention of the learned counsel for the appellants. It is thus evident from the discussion above that the prosecution did not substantiate by legal evidence on the record the ingredients constituting offence under Section 304B of the Indian Penal Code. And to crown all no witness of village Titmo is forthcoming on the record to support the prosecution case regarding any demand of dowry from the deceased and subjecting her to cruelty or harassment for the fulfilment of the said demand. The learned Court below did not at all meticulously consider and scan the evidence on the record in proper perspective and has committed a serious and manifest error in arriving at the finding of the guilt of the appellants in this case. I, therefore, see substance in the contention of the learned counsel for the appellants and viewed thus the impugned judgment is unsustainable.
11. There is merit in this appeal and it succeeds. The appeal is hereby allowed and the impugned judgment is set aside. The appellants are found not guilty to the charges levelled against them and they are accordingly acquitted. Appellant Suresh Sah is ordered to be set free forthwith it not wanted in any other case. Other three appellants are discharged from the liability of their bail bonds. Appeal allowed.