Patna High Court - Orders
Sanjay Kumar Misra vs State Of Bihar And Ors on 9 July, 2013
Author: Akhilesh Chandra
Bench: Akhilesh Chandra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.100 of 1992
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1. Laljhari Devi, W/O Late Ishwasr Dhari Pathak (Since deceased)
2. Indu Sekhar Pathak S/o Late Ishwar Dhari Pathak, both resident of
Village- Sasrgalli, P.S. Garkha, District Saran.
.... .... Appellant/s
Versus
The State Of Bihar
.... .... Respondent/s
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with
Criminal Revision No.409 of 1992
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Sanjay Kumar Misra S/o Chandra Mohan Misra, resident of Village- Ami,
P.S. Awatarnagar, District Saran.
.... .... Petitioner/s
Versus
1. State Of Bihar
2. Laljhari Devi W/O Late Sri Ishwar Dhari Pathak (Since deceased).
3. Indu Shekhar Pathak S/O Late Shri Ishwar Dhari Pathak, both resident
of Village-Sargahi, P.S. Garkha, District- Saran.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Rana Pratap Singh, Sr. Advocate.
Mr. Sumant Singh, Advocate
Mr. Aaruni Singh, Advocate
Mr. Manish Kumar, Advocate.
For the Respondent/s : MS. Abha Singh, Advocate.
For the Informant::- Mr. B.P. Pandey, Sr. Advocatre
Mr. Aditya Nr. Singh, No.1.
For the State:- Mr. S.N. Prasad, A.P.P.
Mr. Sujit Kumar Singh, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA
ORAL ORDER
JUDGMENT
( Dated 9th July, 2013.)
In this case out of two appellants, appellant no.2
Laljhari Devi is no more and on the information received, a report
was earlier called for from the court below which confirms her
Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 2
death. Hence, the appeal with regard to appellant no.1, Laljhari
Devi stands abated.
2. Criminal Revision has been filed just seeking
enhancement of sentence awarded to the appellants. Both appeal
and revision are heard together and is being disposed of by this
composite judgment.
3. The appellants stand convicted for the offence
under sections 304 B and 201 I.P.C. and sentenced accordingly
undergo R.I. for seven and three years. However, sentences are to
run concurrently as awarded by 5th Additional Sessions Judge,
Saran at Chapra on 30th May, 1992 in Sessions Trial No. 106 of
1990 arising out of Garkha P.S. Case No. 189 of 1988, G.R. No.
3528 of 1988.
4.The prosecution case, in short, as revealed from
Ext.2, the written information given by Sanjay Kumar Mishra
P.W.6 is that his sister (deceased) was married just one and half
years before with now solitary surviving appellant Indu Shekhar
Pathak and normal gifts etc. were presented, but there was demand
of Freez and Godrej Almirah in dowry. To meet such demands
parents were not capable so his sister was being tortured and she
also informed by letter about such demands and just yesterday on
11.11.1988at about 7 P.M. he could gather information about Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 3 killing of his sister by burn injuries by husband and in-laws and just to verify such information he arrived at her in-laws place where he was informed by them about her death due to illness, but they failed to meet his query about not giving any information about her illness or death they kept mum, but his information was further confirmed by the villagers about unnatural killing and burning in the room and disposing of the dead body. On such information case was instituted at about 4.30 A.M. on 12.11.1988. The police for investigation arrived at the house of the accused persons and after completing investigation submitted charge sheet for the offence under section 302, 304 B, 201 and 34 I.P.C. besides ¾ of Dowry Prohibition Act against three including two appellants, one of which being Juvenile has faced separated trial. However, against two appellant's charges for the offence under sections 302, 304 B and 201 I.P.C. were framed and accordingly they faced trial.
5. To substantiate the charges prosecution examined altogether eight witnesses besides producing the following documents:-
Ext. 1- Signature4 of Ashok Kumar Mishra on Seizure list.
Ext. 1/1- Signature of Sanjay Kumar Mishra on Seizure list.
Ext. 2- Written statement of Sanjay Kumar Mishra Ext.3- Letter of the Deceased Asha Devi.Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 4
Ext.4- Written report of Sanjay Mishra Ext.5- F.I.R.
Exts. 6 & 6/1- Seizure lists.
Ext. 7- Prastuti Suchi.
6. On behalf of the defence there is solitary witness (Doctor) and by way of only documentary evidence his prescription is marked as Ext. A.
7. The court below on consideration of the materials exonerated the appellants from the charge under section 302 of the I.P.C. and convicted and sentenced in the manner as aforesaid.
8. Contention of the learned counsel for the appellants is that the prosecution has not been able to establish any sort of demand or torture soon before death of the deceased and father of the deceased as P.W.5 has added the demand of Rs. 40,000/- in cash by the appellant but only for the purpose of meeting the demand of bribe to secure his employment. Such demand cannot be termed as a demand of dowry. The prosecution has further produced two letters, one said to be written by the deceased and another by the appellants, but none of these two documents are genuine one and even after examination in Forensic Science Laboratory the letters said to be written by the appellant has not been proved. Further reliance is placed on the decision of the Apex Court in the case of "Bakshish Ram & Anr Vs. State of Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 5 Punjab" reported in 2013 Cri. L.J. 2052 and also in the case of "Modnab Kasimsab Kanchagar Vs. State of Karnataka and Another" reported in 2013 Crl. L.J. 2056 as well as in the case of "Vipin Jaiswal (A-1) Vs. State of Andhra Pradesh", reported in 2013 Crl. L.J. 2095.
9. On the other hand, it is submitted that from all corners prosecution has established the case, but defence failed to meet the presumption of law against them due to unnatural death of the deceased and disposal of the dead body without any information to her parents in haste just to screen there is illegal act committed within less than two years of her marriage for non fulfillment of certain demands. This is immaterial that even one of the demands relating to cash may not be treated as demand of dowry, but there are other sorts of demand and they are well proved. It is also contended on behalf of the Informant that the court below has taken lenient view by awarding minimum prescribed punishment which needs to be taken under consideration.
10. P.W.1 Birendra Kumar Singh, a co-villager and friend of the informant has come to say that on 11.11.1988 he along with the informant arrived at the house of the appellant. They did not found the deceased and on enquiry the solitary Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 6 appellant intimated that she was ill and dead, but he failed to meet the question about non intimation to her family members and disposal of the dead body. He further states that the informant has informed this witness about continuous demand made by in-laws of the deceased which could not be fulfilled causing her death by burn and he further visited the place where she was finally disposed of and burn
11. No doubt, on the point of demand this witness is a hear say witness, but at the same time after cross examination the witness states about the information received from the villagers while he was going to police station with the informant about killing and disposing of the dead body of the deceased by her husband and in-laws.
12. P.W.2, Ashok Kumar Mishra aged 15 years at the time of his deposition on 8th January, 1991, consequently at the time of occurrence he was around 12 years comes to say about the demand and ill treatment with the deceased by her husband and in- laws about which he also got information from his sister and to meet her he had been visiting her place and lastly on 11.11.1988 at about 7.30 P.M. on the occasion of Bhaiya-Duj when he arrived there did not found his sister. Her mother-in-law, appellant no.1 (now dead) intimated while she had been going to meet natural Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 7 call with the aid of Dhivri her Sal got fire resulting into her death, but she also failed to reply why an intimation was not giving. He further says that his village is at such a distance which may be covered by bicycle within half an hour to 45 minutes. On getting such information he stayed there and slept after weeping. Suddently, at about mid night at 12.30 P.M. his brother P.W.6 along with his friend P.W.1 Bijendra Kumar Singh and P.W.4 Pramod Kumar Singh arrived and intimated him that in fact his sister was killed and all proceeded to police station where case was instituted. The police also arrived and visited the place of disposal of dead body and found some sign of burn bone, prepared seizure list where he also one of the witness and proved his signature as Ext.1. He further states about the letter said to be written by the surviving appellant to his father some how or the other came in control of her deceased sister who had earlier given him to hand over his father. Meanwhile, such occurrence had taken place and he further produced the letter to the I.O. During cross examination he stood the test of visiting the deceased's place at regular interval and further in Paragraph- 19 he states about the letter of demand received at his place, of course, none of the accused in person arriving at his place and put any demand. He also says that father-in-law of the deceased died a year after her Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 8 marriage. In para-11 he says about supply of letter two to three days after recording statement etc.
13. P.W.3 Nagendra Nath Pathak, co-villager of the appellant since stated his ignorance about occurrence with only assertion that the deceased was cremated at due place and declared hostile and in cross examination by the accused persons for the first time it is taken from this witness that the deceased have been ailing and under treatment at Chapra for two to three days and while she was to be taken to Patna she died and duly cremated.
14. P.W.4, Pramod Kumar Singh, another companion of the informant at the relevant time supports the prosecution version and corroborates what is stated by P.W.1 and also coming back to appellant's place with police and search and seizure were made in his presence.
15. P.W.5, Chandra Mohan Mishra, father of the deceased, a Lecturer in Aryuvedic College at Patna, states the prosecution version with addition that in March, 1988 the surviving appellant visited his official place and demanded Rs. 40,000/- to secure his employment and on refusal he also threatened to dire consequences. This information was given by him to Ex-Mukhiya, Triyogi Pathak (not examined), who had assured to communicate the same to the father of the appellant. He Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 9 further assets receiving regular complaints from her daughter about demand and torture at the hands of her husband and in-laws. Further on getting informant on 12th November, 1988 about the occurrence when he arrived at the P.O. village got information that on 10.11.1988 there was an alarm of Chor-chor in the house of the accused persons and when the villagers assembled found the deceased died of burn injuries. He also got information from one Ram Pukar Singh (not examined) about demand of tractor trailer by the deceased appellant for disposal of the dead body which was denied and in the morning Dhrub Pathak, P.W. 7 (declared hostile) also confirmed death of the deceased by burn injuries, but at the same time this witness further states that all these three witnesses went in collusion with the accused persons and not ready to depose. He also says about handing over a letter written by the deceased referring about demands etc. to the police In cross examination it is taken that at the time of negotiation for marriage this witness was informed about surviving appellant as Electronics Engineer. The marriage was performed in the month of June, 1987, but negotiation was finalized six months before. Everything was done peacefully, but three to four months after the marriage situation turned uncomfortable and demands were made. The inmates in para-8 of the cross examination says about such Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 10 changes including demand of cash. He also complained with father of the appellant, who had assured that everything will be okay so long he is living. Though, there is no direct evidence to show the period of death of father of the appellant, but there is statement of P.W.2 that he died almost a year after marriage of the deceased, it brings death of the appellant's father around June, 1988 and this much is undisputed that by the above period (June, 1988) no untoward incident took place with the deceased, who died either by illness or by burn injuries at the hands of her husband and in-laws roughly four to five months thereafter in the month of November, 1988.
16. P.W. 6, Sanjay Kumar Mishra, aged 22 years, the informant, states about prosecution version and also about arrival of neighbors when he along with his friend in the mid night arrived at appellant's house on an Auto-Rickshaw and he also states about visiting the police station along with his friends P.Ws. 1 and 4 and younger brother P.W.2 who had been there at the house of the appellant since few hours before. He proved Ext.2 besides inspection of P.O. in his presence recovery and seizure, his signature on seizure list is Ext. 1/1. He also states about handing over two letters, one written by the deceased and another by the surviving appellant to the I.O. In cross examination he states about Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 11 finalization of the negotiation of marriage by his father and everything performed quite happily and even there was some exchange of gifts on the initial ceremony occasions. Only thereafter as in para-3 in cross examination dis-satisfaction of the in-laws being surfaced. In para-5 he also states about visit of P.W.2 and only after arrival there he got him also in his association and all went to police station without disclosing their destination to any one else. In three hours the police arrived there and arrested all the three accused persons. The villagers had also assembled there and further on recall he produced original of the letter said to be written by the deceased on 10th June, 1988 marked as Ext.3. He denied the suggestion that this Ext. 3 does not contain writing or signature of the deceased.
17. P.W.7 Dhrub Kumar Pathak, since unable to state whether the deceased died of natural or unnatural death and denied to give any statement to the police. He was declared hostile and in cross- examination by the defence he states that the deceased was cremated finally at the cremation place of the village and if this statement of the witness is taken together with the suggestion given to the Informant, P.W.6 which he has denied, but one part of para-5 that the person dying pre-matured or under unfortunate circumstances used to be cremated at village Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 12 cremation place, this much appears demand/ admitted by the defence that the deceased was matured and died in unfortunate circumstance.
18. P.W.8, Nawal Kishore, I.O. of the case, the Officer Incharge at the relevant time states about receiving informant vide Ext.2 and further proved his endorsement on Ext.4, preparation of the formal F.I.R. Ext.5, inspection of P.O. and states about marks of burns in a particular room of the house of the accused persons including burn caused to Leman tree and further from second P.O. i.e. roughly at the distance of one kilometer, preparation of seizure list, Ext. 6. He also admits production of letters by the prosecution Ext. 7. He also says about handwriting of the letter said to be written by the surviving appellant which is his admitting writings by the order of the C.J.M to Forensic Science Laboratory for comparison and report, but ultimately when no report was received charge sheet was submitted and he too had been transferred. Attention of this witness had also been drawn towards statement of P.W.3 and 7 made before him, but denial during trial causing declaring them hostile. In cross examination except not mentioning of distance of Latrin from the room and leman tree etc. practically there is nothing in his cross examination.
Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 13
19. There is detailed examination of the accused persons recorded under section 313 of the Cr.P.C., but it also appears that there is evasive reply given by them on the questions while denying the assertions and they have also stated to file written statement and adduce witness and as stated examined solitary witness producing prescription, Ext.A, but no written statement appears to be filed on his behalf.
20. Though P.Ws. 1 and 4 being hear say witness on the point of demand of Freez and Almirrah etc. made by the appellants from the prosecution side deriving such information from P.W.6 who himself asserts and support such demand made by them. The statements of these two witnesses also relevant and his statement further finds corroborated by the statement of P.Ws. 2 and 5, most relevant witnesses being family members. The prosecution has established making of demand of different articles by husband and in-laws of the deceased only after being dissatisfied of the presents/ gifts received on the occasion of marriage and second marriage (Donga) resulting into changes in their behaviors becoming cruel with the deceased who undisputedly died within less than one and half years of her marriage. It cannot be said that such demands were not made soon before death of the deceased.
Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 14
21. Before the Apex Court in the case of "Bakshish Ram & Anr Vs. State of Punjab" reported in 2013 Crl. L.J. 2052 is of no help to the appellants. In the case before the Apex Court there was a solitary witness on the point of such demand and that too hear say deriving knowledge from alive, but not produced person The witness had no personal knowledge of such demand but it is not the case here. The three family members examined are consistent about such demands and they also at appropriate moment conveyed it to P.Ws. 1 and 4 also.
22. No doubt, the prosecution produced two letters, one said to be written by the deceased and another by the surviving appellant and inspite of the assertion made by the defence that Ext. 3 does not contain writing and signature of the deceased, no attempt is made by the prosecution to either establish the same by getting scientific comparison by any other writing as the letter said to be written by the surviving appellant also. In absence of any support from the F.S.L. report, of course, due to lack of the same from the required materials may not be of any help to the prosecution, but unshaken oral testimony of the witnesses on the point of articles cannot dilute the effect of presumption prescribed under law against the appellants inspite of the fact that the statement of P.W.5 about demand of Rs. 40,000/- Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 15 for the purpose of securing employment cannot be termed as demand of dowry in the light of decision of the Apex Court in the case of "Modinsab Kasimsab Kanchagar Vs. State of Karnataka and Another" reported in 2013 Crl. L.J. 2056. Had it being the solitary demand made by the appellants their conviction for the offence under section 304 B I.P.C. could be converted into section 498 A of the I.P.C.
23. Another decision on the point of the Apex Court in the case of "Vipin Jaiswal (A-1) Vs. State of Andhra Pradesh" reported in 2013 Crl. L.J. 2095 is also no help to the defence since in the case before the Apex Court the prosecution evidence was confirmed about general allegation of harassment added with the demand of some cash to purchase computer and such demand by the deceased at regular interval compelled her to commit suicide while she was alone in the house. The demand of money for purchase of computer since cannot be termed as demand of dowry therefore in absence of specific allegation of demand of any other kind under law cannot attract the presumption under section 304 B of I.P.C. read with section 113 A of the Evidence Act.
24. But here in the instant case there is specific and unshaken allegations of demand of particular items and cruelty Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 16 committed with the deceased, who was done to death within short span of her marriage, which successfully attracts the rigorous and presumption as contemplates under section 304 B I.P.C. which reads as such:-
"304-B. Dowry death- (1)Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death."
Explanation- For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2)Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
25. In face of the above materials, it was the duty of the defence (appellant) to explain the circumstances under which the deceased died and the dead body was disposed of in such a haste having no time to intimate her brothers P.Ws. 2 and 6 available at a distance which can be covered within half an hour to 45 minutes. P.W. 2 and also the father P.W.5 available at Patna, Lecturer in Aruvedic College and the deceased, if at all, was ailing for three to four days and treatment was done at Chapra and on Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 17 becoming situation critical referred to Patna for better treatment, but this is unfortunate that no explanation is offered at any stage by the appellant even though there is consistent assertion of P.Ws. 1, 2, 4 and 6 about asking explanation why not any intimation was given about her illness or death and they have not either been cross examined and suggested.
26. The solitary defence witness examined is also not at all believable. She has come to say that for three days (7.11.1988 to 10.11.1988) the deceased was under her treatment as out door patient daily coming from her village Garkha to Chapra and she had been suffering from some gynecological ailment aided with jaundice, but inspite of the fact that there was little improvement the Doctor never advised her to get the pathological examinations done. She also did not get her admitted in her clinic or hospital inspite of the fact known to everybody that jaundice patient needs rest. She (Doctor) permitted her to visit her clinic daily after covering substantial distance. The prescription Ext. A further indicates that in the normal practice of any Doctor detailed address is given there at the top as Smt. Asha Devi, wife of Sri Indu Shekhar Pathak resident of Sargathi, P. O. and P.S, Garkha, Chapra, but she has failed to mention even her age.
27. The defence witness also appears contrary to Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 18 the first explanation offered by the deceased- appellant to the brother of the deceased; P.W.2 that she died of the fire caught her Shal while going to meet natural call. The Investigating Officer P.W.8 also during inspection found some mark of fire and smoke around the place inside the premises of the appellants and statement of both the witnesses remain uncontroverted or challenged. It is not possible a person to die twice, one while proceeding for a better treatment on the recommendation of treating Doctor or at the house from where she was going to attend natural call by burn injury and simultaneously the accused persons left such assertion of death by fire at any subsequent stage including their statement recorded under section 313 of the Cr.P.C.
28. On over all consideration of the materials available on records, it is crystal clear that the deceased died of unnatural death within one and half years of her marriage at the hands of her in-laws including appellant for non fulfillment of petty demands of dowry and it is extreme cruelty that even her dead body was not permitted to be seen by her parents and brothers when they were available at a short distance just to screen the crime committed by the wrong doers who are none else but her in-laws and husband (solitary appellant). Hence, there appears no Patna High Court CR. APP (SJ) No.100 of 1992 (29) dt.09-07-2013 19 reason to interfere with the conviction of the appellant for the offence under section 304 B and 201 of the I.P.C.
29. The appellant has been sentenced seven years R.I. under section 304 B and three years under section 201 I.P.C. in the year 1982 for an offence committed in the year 1988. Since he has also suffered (mentally and physically) a lot due to lapse of about 25 years, there appears no need to make any enhancement in the sentence awarded inspite of the fact that it is nothing but minimum prescribed under law.
30. In the result, finding no merit the revision as well as appeal both are hereby dismissed. And the appellant is directed to surrender before the court below to serve the remaining period of sentence.
(Akhilesh Chandra, J.) Patna High Court.
Dated 9th July, 2013.
Abhay