Patna High Court
Deepak Paswan vs The State Of Bihar on 9 August, 2017
Author: Vinod Kumar Sinha
Bench: Vinod Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.67 of 2013
Arising Out of PS.Case No. - 190 Year- 2010 Thana -Alamganj District- PATNA
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1. Deepak Paswan S/O Gullu Paswan R/O Village - Chaili Tal, Nahar Par, Jalla
Road, P.S.- Alamganj, Distt. - Patna
.... .... Appellant
Versus
1. The State Of Bihar
.... .... Respondent
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Appearance :
For the Appellant : Mr. Mr. Arun Kumar Tripathy, A.C.
For the Respondent : Mr. Binod Bihari Singh, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
CAV JUDGMENT
Date: 30 -08-2017
This appeal is directed against the judgment dated
27.11.2012passed in Sessions Trial No.383 of 2011 by Sri Ravindra Patwari, A.D.J. III, Patna City, by which he has convicted the sole appellant under Section 304B of the Indian Penal Code and sentenced him to undergo R.I. for ten yeas under Section 304B of the Indian Penal Code.
2. The prosecution story in short is that P.W.3 Chhatrawali Paswan, who is father of the deceased has lodged a Fardbeyan before the Alamganj Police on 8.7.2010 at 7.30 in N.M.C.H. stating inter alia that his daughter was married two years ago with appellant and after the marriage, her daughter was living in her 'Sasural'. It has also been alleged that the appellant used to Patna High Court CR. APP (SJ) No.67 of 2013 dated 30-08-2017 2/15 assault his daughter on the pretext of demand of dowry and when the deceased came to her 'Maike', she was sent back to her 'Sasural'. It is also alleged that the appellant was demanding cash and TV and he was also threatening to kill her if the demand is not fulfilled. It is the further case of the prosecution that on 6.7.2010 at the night 11.00P.M. one Binda Devi informed the informant telephonically that his daughter has been set on fire by the appellant due to which she is seriously injured and on that information, the informant along with Sabuja Devi (P.W.2) mother of the deceased, Dharmendra Paswan (P.W.5) and Bechan Paswan (P.W.7) went to her 'Sasural' and found her in unconscious condition, thereafter with the help of the villagers, they brought her to the NMCH where her treatment was going on and during the course of her treatment on 8.7.2010 at 3.00 A.M. she died.
3. On the basis of aforesaid Fardbeyan, Alamganj P.S.Case No.190 of 2010 has been registered against the informant and the police after investigation has submitted charge-sheet against the appellant under Section 304B of the IPC and thereafter the cognizance of the offence has been taken and the case has been transferred ultimately to the file of Sri Ravindra Patwari, A.D.J. III, Patna City for trial and disposal and during the trial the charge was framed under Section 304B of the IPC against the sole appellant. Patna High Court CR. APP (SJ) No.67 of 2013 dated 30-08-2017 3/15
4. During the trial altogether seven witnesses have been examined and they are - P.W.1 Binda Devi, P.W.2 Sabuja Devi, P.W.3 Chhatrawali Paswan, P.W.4 Dr. Radha Raman Singh, P.W.5 Dharmendra Paswan, P.W.6 Kumar Deepak, P.W.7 Bechan Paswan. Out of them P.W. 2 Sabuja Devi is the mother of the deceased, Chhatrawali Paswan P.W.3 is the father of the deceased as well as informant in this case. P.W. 4 Dr. Radha Raman Singh has conducted the postmortem of the deceased, P.W.5 Dharmendra Paswan and P.W.7 Bechan Paswan claim to be cousin of the deceased and they are the witnesses on the inquest report, P.W. 6 is the I.O. of the case.
5. Apart from the above, following oral evidence have been produced on behalf of the appellant. Ext.1, signature of the Dharmendra Paswan, Ext.2 signature of Bechan Paswan on the inquest report, Ext.3 Fardbeyan, Ext.4 formal F.I.R. Ext.5, inquest report.
6. On behalf of the defence, neither any ocular nor any documentary evidence has been adduced. Defence of the prosecution, as the trend of the cross examination is that while the deceased she was preparing food, her 'Saree' caught fire and due to which she became injured and she was taken to the hospital by the appellant but later on she died. Further defence is that he was arrested at the Patna High Court CR. APP (SJ) No.67 of 2013 dated 30-08-2017 4/15 hospital. However, as per statement of appellant under Section 313 of Code of Criminal Procedure is that the fire broke out in his house and due to which she received burn injury and due to that she died.
7. After conclusion of the trial, the learned trial court has convicted the appellant under Section 304 of the IPC and sentenced him to undergo R.I. for ten years.
8. Being aggrieved by the aforesaid judgment and order, the present appeal has been filed on behalf of the appellant on various grounds.
9. On perusal of oral evidence adduced on behalf of the prosecution, it appears that P.W.3 (informant) is father of the deceased, who has stated in-chief that the appellant used to assault her after marriage and he was demanding TV and cash in dowry. His evidence further shows that on the day of occurrence, he received telephone calls from P.W.1 Binda Devi that the appellant has set the deceased on fire in the night at about 11.00 P.M. and on information, he along with his wife and others went to the house of the appellant and there he saw her daughter in injured condition and at that time, Binda Devi was also present there and they took the deceased to NMCH for treatment and during the course of her treatment, after two days she died and thereafter, he lodged the present case. In his Patna High Court CR. APP (SJ) No.67 of 2013 dated 30-08-2017 5/15 cross examination, he has stated that P.W.1 Binda Devi was mediator in the marriage. In his cross examination in para 14 also he has supported the prosecution case of demand of TV and cash. A suggestion has been given to this witness that while preparing food, 'Saree' of the deceased caught fire; due to which she received injuries which he has denied. He also denied the suggestion that the appellant was not at that time in the house and when he returned, took her to the hospital.
10. P.W.2 is the mother of the deceased and she has supported the prosecution case and stated about assault and also demand of TV and cash by the appellant. Her evidence also disclosed that they received telephone calls and on that she along with other witnesses including P.W.3 went to her 'Sasural' where her daughter was found having burnt injuries and thereafter she was taken to the hospital where she died. In paragraph 7 of the cross examination, she has stated that her daughter told her that she was set on fire after pouring k-oil. She has also denied suggestion about catching fire of 'saree' while preparing food.
11. P.W.1 is sister of P.W.3 and her evidence also shows that she saw the deceased coming out of home in burning condition. Her evidence also discloses that she informed P.W.2 and 3 on mobile Patna High Court CR. APP (SJ) No.67 of 2013 dated 30-08-2017 6/15 about occurrence and then they came and took her to the hospital where she died after two days of treatment. This witness has also been cross examined. She has also denied the suggestion that due to non- fulfilment of demand of money, she has deposed falsely.
12. Hence, evidence of P.W.1, 2 and 3 supports the earliest version as mentioned in the F.I.R., relating to demand of TV and cash and also of assault and death of deceased due to burning.
13. Apart from that P.W.5, who happens to be cousin brother of the deceased has also stated that he had seen the deceased in burnt condition and the appellant has set her on fire due to dowry. In his cross examination in para 4 he has stated that the deceased Gyatri Devi was crying to save her and she was set on fire.
14. P.W.7 is also cousin brother of the informant and he has also supported the prosecution case of setting her on fire due to demand of dowry. Both P.W.6 and 7 are witnesses.
15. P.W.4 is the Doctor, who has conducted postmortem examination and he has also stated in his evidence that the burn injuries were ante mortem in nature and cause of the death was shock caused by burn injuries. This witness has been cross examined but there is nothing important in his cross examination to disbelieve his Patna High Court CR. APP (SJ) No.67 of 2013 dated 30-08-2017 7/15 finding.
16. P.W.6 is the I.O. of the case and he has stated in his evidence that place of occurrence is the house of the appellant . His evidence also discloses that he recorded statement of the witnesses and collected postmortem report and after investigation, he submitted charge-sheet under Section 304B of the IPC. His evidence in para 10 also shows that the appellant was arrested on 8.7.2010 from his house and he has denied suggestion that he was arrested from the hospital.
17. As stated above, the learned trial court relying upon the evidence of P.W.3, who is informant of the case corroborated by other evidence, has convicted the appellant under Section 304B of the IPC.
18. In this case, no body appeared on behalf of the appellant, as such Mr. Arun Kumar Tripathy was appointed as the amicus curie by this Court. Submission of the learned Amicus Curie is that there are no independent witnesses to the occurrence and none of the villagers of the place of occurrence have been examined and only on the basis of evidence of P.W.1, 2, 3, 5 and 7, who are family members of the deceased, the appellant has been convicted under Section 304B of the IPC and evidence of P.W.3 itself shows that there is enmity between P.W.1 and the appellant from before, as such her Patna High Court CR. APP (SJ) No.67 of 2013 dated 30-08-2017 8/15 evidence is not free from doubt. Further submission of the learned Amicus Curie is that there is no reliable and cogent evidence available on the record with regard to the deceased being subjected to cruelty in connection with demand of dowry, as such conviction of the appellant under Section 304B of the IPC is not proper. It is also submitted that as a matter of fact the deceased caught on fire while preparing food and the appellant has taken her to the Hospital for treatment. It has also been argued that till deceased died, no information was given to the police nor the appellant was arrested rather he was arrested only after death of the deceased from the hospital itself, which will appear from the evidence of P.W.2, who is mother of the deceased. This clearly shows that whole prosecution case is full of embellishment and not free from reasonable doubt.
19. On the other hand the learned counsel for the state has submitted that there is consistent evidence available on the record to shows that the deceased was done to death by setting her on fire and apart from that there is consistent evidence available on the record about demand of dowry and the deceased was subjected to cruelty by the appellant. It has also been argued that the Doctor has also found the death due to burn injury, as such there are circumstances, which clearly shows that she was done to death within seven years of her marriage in connection with demand of dowry and Patna High Court CR. APP (SJ) No.67 of 2013 dated 30-08-2017 9/15 she was subjected to cruelty also, as such there is presumption against the appellant and though in the cross examination, a suggestion has been given that her 'Saree' caught fire and due to which she received burn injury but in his statement U/S 313 of Code of Criminal Procedure, the appellant has stated that the fire broke out in his house and she received injury. That clearly shows explanation given by the appellant about cause of her death is contradictory, which does not inspire confidence.
20. On conjoint reading of Section 304B of the IPC and Section 113B of the Indian Evidence Act, it clearly appears that once the prosecution has been able to establish (i) death within seven years of marriage and that too in not under natural circumstances, (ii) she was subjected to cruelty, soon before her death and that too in connection with demand of dowry, there shall be presumption against the appellant of dowry death, no doubt that presumption is rebuttable. Hon'ble Apex Court has also held so in several decisions and it is needless to repeat the same. At the same time, prosecution has to establish those ingredients beyond all reasonable doubts then only there is legal fiction of presumption against the accused persons.
21. In the present case, prosecution story is that deceased was married two years prior to date of occurrence i.e. 6.7.2010 and Patna High Court CR. APP (SJ) No.67 of 2013 dated 30-08-2017 10/15 evidence of P.W.3 also disclosed the same, corroborated by P.W.2, mother of the deceased as well as F.I.R. (Ext.3).
22. Evidence of prosecution witness is also that death is due to burning and evidence of Doctor (P.W.4) and post mortem report (Ext. 1) also supports that even in spite of cross examination, there is nothing to doubt the above prosecution evidence, rather from cross examination, made by defence, it appears that they had also admitted that death is due to burning but in other circumstances. Hence, death is also in not under natural circumstances rather due to burn injuries.
23. So far demand of dowry and subjecting the deceased to cruelty in connection with the said demand is concerned, there is consistent evidence available on the record of P.W.3 and 2 who happen to be father and mother of the deceased about demand and they have also stated about assault by the appellant to the deceased in connection with the said demand. P.W.1.
24. The evidence of P.W.1 and P.W.7, who also appear to be family members also corroborate the evidence of P.W. 2 and 3, so far death of the deceased by burn injuries and they have also supported the prosecution case of demand of TV and cash.
25. Submission of the learned amicus curie is that not a Patna High Court CR. APP (SJ) No.67 of 2013 dated 30-08-2017 11/15 single independent witness either of the village of the informant or of the appellant has been examined in support of the prosecution case and in such view of the matter relying only on the related and interested witness is not safe. In the present case the occurrence took place in the house of the appellant. The case is under Section 304B of the IPC relating to dowry death and in such a case searching the independent witness is very difficult as has been observed by the Hon'ble Supreme Court in the judgment of State of Punjab .Vrs. Iqbal Singh and Others reported in 1991 (3) SCC 1 at Para 8 "The legislative intent is clear to curb the menace of dowry deaths, etc. with a firm hand. We must keep in mind this legislative intent. It must be remembered that since crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing Sections 113A and 113B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage".
26. In the above background, when there are consistent and cogent and unimpeachable evidence available on the record, it can not be thrown on the ground that no independent witness has been Patna High Court CR. APP (SJ) No.67 of 2013 dated 30-08-2017 12/15 examined.
27. Further submission of the amicus curie is that though there is evidence of demand of dowry and also evidence of subjecting her to 'mar-pit' but there is no evidence that she was subjected to cruelty soon before her death or prior to occurrence dated 6.7.2010 and as such ingredient of demand of dowry and cruelty as envisaged in Section 304B of the IPC is missing in this case.
28. As stated above, the evidence of P.W.2 and 3 are consistent on the allegation of demand of dowry of TV and cash and they have been corroborated by F.I.R. (Ext.4). Further the above evidence, in spite of cross examination has remained unrebutted. Defence has tried to show that as no complaint has been made with respect to demand and assault as such the story of demand and assault is not believable , however, the evidence of P.W.3 who is father of the deceased itself shows that he tried to pacify his daughter to live peacefully as he will talk to the appellant and in such a situation, if there is no complaint to police, there is nothing abnormal in that . It further appears that the death has occurred within two years of her marriage and there is allegation that after marriage the appellant started assaulting and demanding TV and even the evidence of P.W. 5, who is cousin brother in Para 6 shows that the deceased Gayatri Patna High Court CR. APP (SJ) No.67 of 2013 dated 30-08-2017 13/15 Devi was not happy in her 'Sasural'. The word 'soon before her death' does not mean just one or two days or one or two months prior to occurrence rather it should have a reasonable nexus and in proximity to death and there is live-link between the concerned death and cruelty. In the present case, there was allegation that he was demanding TV and cash and in he was assaulting the deceased and thereafter there is prosecution evidence that she was set on fire causing her death and even two years of her marriage, as such it clearly appears that there is live-link between the demand of dowry and her death. Hence it can be said that allegation of demand and cruelty is of soon before death.
29. Submission has also been made on behalf of the appellant that it is the appellant has taken her to the hospital and he was arrested at the hospital after death of the deceased and that supports defence case that she received burn injury while preparing food and appellant taken her to hospital, as such defence story is more plausible. However, there is consistent evidence available on the record to shows that the deceased was taken to NMCH by P.W.3 and other prosecution witnesses. Apart from that evidence of P.W.2 who is mother of the deceased shows that deceased disclosed her about setting her on fire. Evidence of P.W. 5 also shows that the deceased has stated about setting her on fire. Disclosure of deceased to P.W.2 Patna High Court CR. APP (SJ) No.67 of 2013 dated 30-08-2017 14/15 and 5, as stated above, appears to be admissible in evidence under Section 32 of the Evidence Act.
30. In such view of the matter, there are cogent, consistent and unimpeachable evidence available on the record to show that the death of the deceased occurred within two years of her marriage and death was not under normal circumstances. Further it appears that she was subjected to cruelty prior to death and that too in connection with demand of dowry of TV and cash further the death has occurred inside the house of the appellant. Hence, in view of Section 304B and 113B of IPC there shall be a presumption against the appellant of dowry death.
31. Appellant has come with a story that the deceased died due to her 'Saree' catching fire in course of preparation of food but the same does not appear to be believable on two grounds :
Firstly in his statement under Section 313 Cr.P.C. he has stated that a fire broke out in his house in which she received burn injury, but cross examination is on line that 'Saree' of deceased caught fire while preparing food. Secondly on the ground that the evidence of P.W.2 and P.W. 3 shows that the deceased has disclosed about her being setting on fire. Hence, explanation of the defence for her death does not inspire confidence and not appear to be believable in nature.
32. Considering the entire discussions made above, there Patna High Court CR. APP (SJ) No.67 of 2013 dated 30-08-2017 15/15 is nothing in this appeal to doubt the judgment and conviction of the appellant under Section 304B of the IPC rather it appears that the prosecution has been able to establish its case under Section 304B of the IPC against the appellant beyond all set of reasonable doubt.
33. Considering the entire discussions as made above, conviction of the appellant under Section 304B of the IPC appears to be just and proper and does not require any interference by this Court.
34. Accordingly, this appeal is dismissed and the conviction & sentence awarded to the appellant is affirmed.
(Vinod Kumar Sinha, J) chn/-
AFR/NAFR NAFR CAV DATE 09.08.2017 Uploading Date 01.09.2017 Transmission 01.09.2017 Date