Patna High Court
Chandrama Singh And Ors. vs State Of Bihar on 18 February, 2005
Equivalent citations: I(2005)DMC739
Author: Ghanshayam Prasad
Bench: Ghanshyam Prasad
JUDGMENT Ghanshayam Prasad, J.
1. Both appeals arise out of the same judgment and order dated 20.12.2002 passed by Shri N.P. Singh, Additional District and Sessions Judge, Sasaram in Sessions Trial No. 582 of 1997. Six persons including these appellants were put on trial for committing dowry death out of whom two ladies accused, namely, Deo Ratan Devi and Mira Devi have been acquitted. Rest four accused persons who are appellants have been convicted under Sections 304-B and 201, IPC and are sentenced to undergo rigorous imprisonment for ten years under Section 304-B, IPC and rigorous imprisonment for two years under Section 201, IPC with a direction that both the sentences shall run concurrently.
2. The prosecution story as revealed in Fardbeyan Ext. 1 lodged by Smt. Shanti Devi (P.W. 4) is as follows : The deceased Ram Kali Devi, daughter of the informant was married with accused appellant Upendra Singh in the year 1992-93. After two years of the marriage the ceremony of Donga (second marriage) was performed on 19.11.1995. Thereafter, the deceased came to her husband's place and began to live with him. It is alleged by the informant that since from very beginning the accused-appellants were demanding TV. as dowry from her to which she expressed her inability to meet.
3. It has been further alleged that in the last week of June, 1996 the informant received a secret information regarding murder of her daughter by her husband and in-laws. Thereafter, she sent her son Niranjan Kumar Singh (P.W. 1) to the place of accused-appellants to enquire about her daughter Ram Kali Devi and then she came to know that her daughter was actually murdered on 27.6.1996 by the accused-appellants and her dead body was secretly disposed of without giving any information to her and her family members. It has further been alleged that when P.W. 1 tried to ascertain about the facts of her death he was driven out by the accused appellants and they told him that they would fight cases even by selling their lands.
4. On the basis of written report dated 2.7.1996 of the informant Shanti Devi (P.W. 4) the police registered case against all the six persons under Sections 304-B/201, IPC and after investigation submitted charge-sheet under the above sections.
5. In course of the trial, the prosecution examined as many as eight witnesses including the informant, P.W. 4 Shanti Devi, her son P.W. 1 Niranjan Kumar Singh and I.O. P.W. 7 Saheb Saran Sharma. Other witnesses are P.W. 2 Anil Singh, P.W. 3 Pappu Kumar Singh, P.W. 5 Shyam Kishore Singh, P.W. 6 Ajay Singh and P.W. 8 Raj Kumar Singh.
6. Defence was total denial of the occurrence. It was denied that demand of dowry was ever made to the informant or anybody nor the deceased was murdered for any dowry demand. The real fact was that the deceased Ram Kali Devi all of a sudden fell ill and developed symptom of diarrhoea, stomach pain and vomiting. She was immediately removed to the clinic of Dr. Vijay Kumar Singh at Kakkata were she died in course of the treatment. It was further averred that the deceased was cremated in presence of the informant and her other family members. In support of their defence, they examined six witnesses including the doctor as D.W. 5 Vijay Kumar Singh. Other witnesses D.W. 1 Jitendra Singh, D.W. 2 Surendra Singh, D.W. 3 Ramadhar Singh, D.W. 4 Gopalji Singh and D.W. 6 Lallan Prasad Singh.
7. In course of the argument, it is submitted on behalf of the appellants that the Court below has not properly appreciated either oral or the documentary evidence adduced on behalf of both the parties. It is further submitted that all the ingredients of Section 304-B, IPC have not been proved and so no presumption of "dowry death" can be known under Section 113-B of the Indian Evidence Act.
8. In order to appreciate properly the prosecution case as well as its evidence, here I would like to reproduce Section 304-B, IPC :
"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.
(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."
9. Our Apex Court in several cases including in a case reported in AIR 1991 SC 1226 and 2004 (9) SCC 476, had occasion to explain ingredients of Section 304-B, IPC and has held that in order to attract Section 304-B, IPC the prosecution must establish following essentials :
(i) The death of woman should be caused by burn 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 relative of her husband.
(iv) Such cruelty or harassment should be for in connection with demand for dowry.
10. The Legislature has also enacted statutory presumption of dowry death by inserting Section 113-B in the Indian Evidence Act, which is 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 has 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."
11. In the instant case, it is admitted that the death of Ram Kali Devi was occurred within seven years of her marriage and, therefore, the only fact which has to be established by the prosecution is that soon before her death she (Ram Kali Devi) was subjected to "cruelty and harassment" by her husband or by relatives of her husband (accused appellants) in connection with dowry demand. Only thereafter, Section 113-B, Evidence Act comes to play and raises presumption in favour of commission of 'dowry death" unless the defence shows that the death of woman was not otherwise than under normal circumstances.
12. The most important term "cruelty or harassment" to which the prosecution is required to establish has not been defined either in Section 304-B or in Section 113-B of the Indian Evidence Act. However, it has been defined in Section 498-A, IPC in which also ''cruelty or harassment" is essential. The explanation to Section 498-A gives the meaning of "cruelty and harassment' which is as follows :
"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 is on account of failure by her or any person related to her to meet such demand.
13. In order to attract the provision of Section 304-B of the IPC the cruelty or harassment as defined must be meted out to the woman in connection with dowry demand just before her death. Now let us examine case of the prosecution and its evidence on the above essential of Section 304-B, IPC.
14. Ext. 1 is the Fardbeyan lodged by Shanti Devi (P.W. 4) the mother of the deceased, Ram Kali Devi. It is stated by her in her evidence para 3 that the Fardbeyan was scribed by her son. This fact is also admitted by her son P.W. 1 Niranjan Kumar Singh. The Fardbeyan being initial version of the occurrence is an important piece of document for the prosecution. On mere perusal of Ext. 1, it appears that only allegation on this point, is that since after second marriage i.e., on 19.11.1995 demand of T.V. as dowry was being made to her to which she told that she was unable to meet at the present. There is no detail as to who put demand for T.V. or that as a result of failure to meet the demand Ram Kali Devi was subjected to any cruelty or harassment by all or any members of her Sasural or that the deceased ever complained to the informant or to anybody that she was being tortured physically or mentally by her in-laws or her husband for the same. There is only simple allegation of demand of dowry (T.V.) without any specific date.
15. Now come to the oral evidence adduced by the prosecution. The most important witness of the prosecution is the informant herself who is P.W. 4. She, in her evidence para 1 has supported the allegation made in her Fardbeyan (Ext. 1) with certain details. In paragraph 2 of her evidence, she has stated that about eight days before the death of her daughter appellant Chandrama Singh came to her house and put his demand for T.V. This statement is a subsequent development. However, she has not uttered a single word regarding torture or harassment meted out to her daughter for non-fulfilment of the dowry demand. She has also not stated in her evidence that her daughter ever complained to her regarding torture or harassment by her husband or any other family members of her husband.
16. The other important witness is the son of the informant who is P.W. 1 Niranjan Kumar Singh. Admittedly, he is brother of the deceased. He in his examination-in-chief has tried to make out a case of torture or harassment meted out to her sister for dowry demand. He has stated that in second marriage the appellants put demand for T.V. and on failure to meet their demand they became angry and thereafter they began to torture his sister by abusing and assaulting her. As mentioned above, the entire evidence of this witness regarding torture does not find place in the Fardbeyan Ext. 1, which is the initial version of the prosecution story. Apparently, it is a subsequent development. This witness himself scribed the Fardbeyan on behalf of her mother. In other words, he was the author of the Fardbeyan but did not mention even a single word regarding torture or harassment, for the reasons best known to him. Apart from it, from the evidence of I.O. P.W. 7, it would appear that there is no such parallel statement of this witness before the police. This witness has not uttered a single word regarding torture of the deceased in his statement before the police. This fact has been stated by the I.O. P.W. 7 Saheb Saran Sharma in his evidence paragraph 7. Therefore, no such reliance can be placed on the evidence of this witness on the point of torture or harassment meted out to his sister Ram Kali Devi.
17. P.W. 2 Anil Singh is not on this point. He comes into picture after the death of Ram Kali Devi. He has simply stated in his evidence that he came to know from Shanti Devi that Ram Kali Devi was murdered by the accused appellants. P.W. 3 Pappu Kumar has supported the fact regarding demand of T.V. by the accused appellants. However, he has not uttered a single word regarding torture or harassment meted out to the deceased. Apart from it, it appears from paragraph 8 of his evidence that he was not examined by the police in course of the investigation.
18. Similarly, P.W. 5 in his examination-in-chief paragraph 2 has supported the fact of demand of dowry by the accused appellants and specially by accused appellant Chandrama Singh about a week before the death of Ram Kali Devi. However he has not uttered a single word on the point of torture or harassment to the deceased Ram Kali Devi by any of the accused appellants. It further appears from his evidence, paragraph 4, that he was not examined before the police in course of the investigation. For the first time, he deposed before the Court. In this view of the matter, no much reliance can be placed on the evidence of this witness.
19. P.W. 6 Ajay Singh has simply stated in his evidence paragraph 2 that in "Gauna" of Ram Kali Devi accused Chandrama Singh put demand for T.V. He has not stated that any other accused persons demanded any dowry from the informant or her family members. He has also not uttered a single word in his evidence on the point of torture or harassment meted out to the deceased by the accused appellants.
20. P.W. 7 is the I.O. of the case. His evidence is not of much importance except for the contradictions. In paragraph 7 of his evidence, he has stated that P.W. 1 Nirnjan Kumar Singh has not stated before him in his statement that in "Gauna" of his sister demand for T.V. was made by the accused appellants and they threatened of bad consequences in case of failure to meet their demand. He has also denied that P.W. 1 made any statement before him regarding torture or harassment meted out to his sister by accused appellants. In paragraph 10 of his evidence, he has denied that P.W. 6 Ajay Singh made any statement before him regarding demand of T.V. made by accused Chandrama Singh.
21. P.W. 8 Raj Kumar Singh has been declared hostile. He has not supported the prosecution story on any point.
22. From the above discussion of oral evidence as well as Fardbeyan Ext. 1, it is quite apparent that there is no legal material on the record to show that the deceased Ram Kali Devi was ever subjected to cruelty or harassment by the accused appellants. Now the question arises whether demand of dowry unaccompanied by any torture or harassment is sufficient to attract provision of Section 304-B, IPC On this point Section 304-B, IPC itself is very clear which says "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." Cruelty and harassment has been defined in Section 498-A of the IPC, which also clearly goes to show that mere demand of dowry or any other unlawful demand for any property or valuable security does not come within the definition of cruelty or harassment. In other words, mere casual demand of dowry unaccompanied by any mental or physical torture does not fall within essential ingredient of "dowry death". In absence of proof of cruelty or harassment to the deceased no presumption of dowry death under Section 113-B of the Evidence Act can be drawn and hence the present case does not fall within the mischief of Section 304-B.
23. Since no presumption under Section 113-B of the Evidence Act can be drawn, the defence is not obliged to prove that the death of Ram Kali Devi was not occurred otherwise than under normal circumstances. However, the defence has adduced evidence to show that the death of Ram Kali Devi occurred due to diarrhoea and vomiting in course of the treatment.
24. A faint argument has been advanced by the State Counsel that mere demand of dowry itself is a proof of harassment or cruelty and hence no specific instance of cruelty or harassment need to be proved by the prosecution. In support of it he has relied upon a decision reported in Ram Badan Sharma and Ors. v. State of Bihar, 2004 (3) PLJR 96. Having gone through the judgment, I find no such observation to substantiate the contention of the learned Counsel for the State. In paragraph 8 of the decision, it has been held that cruelty or harassment need not be, physical and even solitary instance of torture would constitute offence. It does not mean that mere demand of dowry amounts to harassment or cruelty. In definition of cruelty or harassment mentioned in Section 498-A of the IPC, it has been clearly mentioned that harassment or cruelty may be physical or mental. In the instant case, there is a complete absence of proof of either mental or physical harassment or torture.
25. As stated above is absence of presumption of dowry death under Section 113-B of the Evidence Act the defence is not obliged to prove death of woman occurred not otherwise than under normal circumstance. In this very case, the defence has adduced to rebut the presumption of dowry death, if any, drawn under Section 113-B of the Evidence Act.
26. The defence has adduced six witnesses. D.W. 1 Jitendra Singh is Goita of the informant. He has come to say that Ram Kali Devi died on 27.6.1996 in clinic of Dr. Vijay Kumar Singh due to diarrhoea and vomiting. He has further stated that the treatment of Ram Kali Devi was done in presence of the informant. D.W. 2 has also supported the fact that Ram Kali Devi died of diarrhoea and vomiting in course of the treatment in clinic of Dr. Vijay Kumar Singh. He has further stated that the mother and father of Ram Kali Devi were present in the clinic. He has denied the allegation of demand of dowry by the accused appellants. D.W. 3 Ramadhar Singh has also supported the defence story and has stated that Ram Kali Devi died of diarrhoea, vomiting and abdomen pain in course of the treatment in clinic of Dr. Vijay Kumar Singh. He has proved Ext. A and Ext. A/1, which are certificates granted by him regarding the cause of death of Ram Kali Devi. P.W. 4 has also supported the defence story and has stated that Ram Kali Devi died of diarrhoea and abdomen pain. She died in course of the treatment in clinic of Dr. Vijay Kumar Singh. D.W. 5 is Dr. Vijay Kumar Singh in whose clinic Ram Kali Devi (died in course of the treatment of diarrhoea and vomiting. He has stated that on 27.6.1996 Ram Kali Devi was brought in his clinic. She was suffering from diarrhoea and vomiting. She died in course of the treatment. He has proved his prescription which is Ext. B. D.W. 6 Lallan Prasad Singh has also supported the defence story and has stated that Ram Kali Devi died on 27.6.1996 in course of the treatment of diarrhoea and vomiting. In cross-examination he has stated that he also took part in cremation of Rain Kali Devi.
27. From the above discussions of defence witnesses, it is quite apparent that the death of Ram Kali Devi was occurred in course of treatment due to diarrhoea and vomiting. There is nothing on the record to show that the death of Ram 'Kali Devi occurred otherwise than, under normal circumstances.
28. Thus, on careful consideration of oral evidence adduced on behalf of both the parties as well as facts and circumstances and also provisions of Section 304-B, IPC and Section 113-B of the Evidence Act, I am of the firm opinion that the prosecution has not been able to bring its case within the ambit of Section 304-B of the IPC. Apparently the judgment of conviction and sentence passed by the Court below is not tenable in the eye of law.
29. In the result, both the appeals are allowed and the judgment and order in question is hereby set aside. Out of four appellants three appellants namely, Chandrama Singh, Rampukar Singh and Sunil Kumar Sunl @ Kumar Singh are on bail. They are discharged from responsibility of their respective bail bonds. One of the appellants, namely, Upendra Singh of Cr. Appeal No. 92 of 2003 is in custody. He is directed to be set at liberty at once if not wanted in any other case.