Patna High Court
Lal Kishore Singh vs The State Of Bihar on 7 April, 2014
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.151 of 2012
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LAL KISHORE SINGH, S/O LATE VISHWANATH SINGH, RESIDENT OF
VILLAGE- GAMHARIA, P.S.- MAJORGANJ, DISTRICT- SITAMARHI.
.... .... APPELLANT/S
VERSUS
THE STATE OF BIHAR .... .... RESPONDENT/S
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Appearance:
For the Appellant/s : Mr. Md. Hussamuddin Azad, Adv.
For the State : Mr. S.A. Ahmad, APP.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 07-04-2014
1. Appellant, Lal Kishore Singh who has been found
guilty for an offence punishable under Section 304B of the
IPC vide judgment of conviction dated 14.02.2012 and
sentenced to undergo R.I. for 10 years vide order of
sentence dated 16.02.2012 by Additional Sessions Judge,
FTC-IInd, Sitamarhi in Sessions Trial No.408 of 2000/7 of
2009 challenged the same und er present appeal.
2. PW-1, Md. Noman gave his fardbeyan on
28.08.1999at about 11:00 A.M. before Officer -in-charge, Sitamarhi at Bhairo Kothi disclosing therein that on the same day at about 08:00 A.M. while he had gone to Bhairo Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 2.
Kothi Chowk, he came across the news that a girl wearing "Samij-Salwar" has been murdered and her dead body is lying South to village by the side of the road. He rushed and found thousand of people assembled there. He found the dead body. He made query from the persons with regard to identify of the dead body, but none had claimed. After close inspection of dead body he had seen blood coming out from right side of eyebrow. So, he apprehended that the girl might have been murdered at some other place and then her dead body was thrown to that place.
3. On the basis of the aforesaid fardbeyan, Sitamarhi P.S. Case No 265 of 1999 was registered against unknown and investigation commenced. It is apparent that during course of investigation, the dead body was identified that of Rajni Kumari wife of appellant, daughter of Lal Babu Chaudhary (PW-2) and Renu Devi (PW-5) and further taking into account the allegation along with cause of death on account of poison, charge sheet was submitted under Section 304(B), 201, 120B, 34 of the IPC and co nsequent thereupon, the appellant face trial and ultimately met with conviction and sentence, the subject matter of instant appeal.
Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 3.
4. Defence of the appellant as is evident from mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is of complete denial of the occurrence. It has been pleaded that Rajni Devi was his wife who was suffering from ailment since before and as his condition deteriorated, on account thereof she was taken to Sadar Hospital, Sitamarhi on 29.08.1999 where she was treated as indoor patient and during course of treatment, she died. To support the same, apart from exhibiting series of documents, two DWs have also been examined.
5. In order to substantiate its case the prosecution had examined altogether eight PWs out of whom PW -1 is Md. Noman, informant, PW-2 is Lall Babu Chaudhary, father of deceased Rajni, PW-3 is Umesh Chaudahry, cousin uncle of deceased, PW-4 is Ganga Prasad Singh, a co-villager of appellant, having been declared hostile, P W- 5 is Renu Devi, mother of deceased, PW -6 is Dr. Ashok Kumar Singh who had conducted postmortem, PW -7 is Devendra Prasad Chaudhary, the main Investigating Officer and PW-8 is Akshaywar Nath Mishra, the part Investigating Officer. The prosecution had also exhibited Ext.-1- Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 4.
Signature of informant over fardbeyan, Ext.1/1 - Fardbeyan, Ext.-2-Positive photo of dead body, Ext. -3 - Postmortem Report, Ext.-4 - the explanation furnished by doctor with regard to postmortem report, Ext. -5 - inquest report, Ext.-6
- Viscera Report.
6. The defence had also examined two DWs out of whom DW-1 is Rama Shankar Prasad Singh while DW -2 is Ram Shankar Singh and had also exhibited Ext. -A-Letter dated 14.12.1998 written in pen of PW -2. Ext.-A/1-Letter in pen of PW-2 dated 07.12.1998, Ext.-B-Serial No.828 of outdoor register dated 29.08.1999, Ext. -C-Indoor Register Serial No.402 dated 29.08.1999, Ext. -D- Death register Entry No.30, Ext.-E-Death Certificate, Ext.-F-The letter written by PW-5 (under dispute).
7. While assailing judgment of conviction and sentence recorded by the learned lower court, it has been submitted on behalf of learned counsel for the appellant that instant case happens to be a glaring example of plantation. Furthermore, there happens to be numerous infirmities persisting in the prosecution case which exposes the illegal conduct of prosecution in connivance with PW -2 Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 5.
as well as PW-5, the parents of Rajni. To buttress such plea, it has been submitted that recovery of the dead body was made on 28.08.1999 and as per postmortem report, Ext.-3, the death had occurred within 48 hours. At the aforesaid relevant period Rajni Kumari was alive and was enjoying her marital life with appellant at her Sasural happily. All of a sudden, she fell ill and was taken to hospital on 29.08.1999 and was admitted, however during course of treatment unfortunately, she died on 30.08.1999. Her death was communicated to the parents and after whose arrival, the dead body was cremated. The aforesaid theme has properly been proved by the appell ant by way of examining two DWs. Not only this, the Investigating Officer (PW-7) as well as PW-8 had during course of investigation looked into the documents and found it authentic which, they during course of deposition stated. It has further been submitted that unfortunately the treating doctor died and that was reason behind non -examination of the doctor which DW-1 had disclosed during course of his cross-examination.
8. It has further been submitted that subsequently thereof, as the appellant failed to oblige his in-laws on Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 6.
account thereof, they became annoyed and in revengeful manner had taken this step wherein they illegally identified the photograph of another lady to be that of Rajni, wife of appellant and on account of such unscrupulous activity of the prosecution party, appellant had been dragged in this case and unfortunately met with conviction and sentence by the learned trial court.
9. Now coming to merit of the case, it has been submitted that positive photograph happens to be inadmissible in the eye of law because of the fact that positive form of photograph is not a primary evidence and in the aforesaid background unless and until negative comes and the persons who had snapped and developed the negative to positive is examined, it cannot be t aken into consideration. That means to be say, brushing aside the manner of identification, the source of identification, nothing remains. Apart from this, there happens to be material development in the evidence of PWs which is itself found exposed by the evidence of PW-7, the Investigating Officer and on account thereof, such embellishment persisting in the evidence of the PWs did not inspire confidence for its acceptance. So submitted that Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 7.
the evidence available on the record is fit to be rejected.
10. Then it has been submitted that the evidence of doctor PW-4 along with Ext.-3, the postmortem report, Ext.-4, the further explanation and Ext. -6, the FSL report is found no way adverse to the appellant because of the fact that those report relates with the dead body which was found on 28.08.1999 and not of Rajni, who died on 30.08.1999 at Sadar Hospital, Sitamarhi. Therefore, the evidence of PW-4 along with above referred exhibits cannot be used against the appellant to connect his complicity so alleged with regard to commission of dowry death of Rajni, which never occurred.
11. Now coming to evidence of the Investigating Officer, it has been submitted that Investigating Officer had played fair play during course of investigation. Though Investigating Officer had submitted charge sheet against the appellants but both the Investigating Officers have gone to hospital and inspected the relevant documents justifying the claim of the appellant and on account thereof, the version of the appellant has got authentici ty, reliability and is fit to be accepted. It has further been submitted that from Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 8.
the evidence of Investigating Officer PW -7, PW-1 the informant, PW-4, doctor along with Ext.-3, Ext.-5 (Inquest report), it is apparent that blood was coming out from right side of eyebrow of deceased, froth was also coming out from nostril but the photograph Ext. -2 lacks all those things which is also indicative of the fact that aforesaid photograph had purposely been introduced at the instance of prosecution party to implicate the appellant.
12. As such, it has been pleaded that prosecution had not succeeded in proving its case. Hence the conviction and sentence recorded by the learned trial court happens to be wrong, illegal, arbitrary and is not based upon facts available on the record.
13. Counter meeting with the submission raised on behalf of appellant, it has been submitted by the learned Additional Public Prosecutor that even taking into account the submission raised on behalf of appellant death of Rajni is admitted. Now the only question rests how she died. According to prosecution or according to defence. Prosecution had prima facie placed evidence that she was murdered on account of failure of parents to satisfy the Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 9.
demand of dowry advanced by the appellant. Howeve r, it has been controverted by the defence. Not only controverted, rather the recovery of dead body, the identification of the dead body have also been put under challenge and in likewise manner, the Ext. -2 positive photograph of deceased has also been challenged. Then in that event it was incumbent upon the defence to have flashed and tendered photograph of Rajni to contradict the photograph Ext.-2 to the effect that Ext.-2 was of different girl than that of Rajni. It has further been asserted that it is also an admitted fact that at the time of death of Rajni, according to own version of defence was under his custody and so, it was incumbent upon him to explain in terms of Section 106 of the Evidence Act.
14. While discharging the aforesaid obligation, defence had exhibited certain documents relating to admission of Rajni at Sadar Hospital, Sitamarhi where she was treated and died during course of treatment. Really she was admitted and was treated. As per Ext.B, it is evident that numerous medicines were p rescribed but DW-1 had not spoken whether those medicines were ever administered to the deceased nor any cash memo of any shop or supply of Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 10.
aforesaid medicine from the store of hospital have been brought up on record to suggest that during course of admission as indoor patient, Rajni was administered those medicine and which could have justified the defence version. Apart from this, it has also been submitted that body of deceased was dissected by PW -4 while conducting postmortem. The deceased was diagnosed as obstruction of abdomen. However, PW-4 was not at all cross-examined on that very score and the worst part is itself evident from the evidence of DW-1 who during course of cross-examination had admitted the overwriting, interpolation having over the relevant registers. Moreover, neither PW -7 nor PW-8, the respective I.O.s were cross-examined on that very aspect whether they have an occasion to inspect the original document. It has also been submitted that under such peculiars situation, the matter was to be explained by the accused himself and for that his right was properly protected under Section 315 of the Cr.P.C. whereunder accused has got his status duly acknowledged being a witness. Accused was expected to come forward and deposed whereunder he should have explained the situation but he did not. Thus, taking into account the interpolation Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 11.
and the overwriting persisting on the record as admitted by DW-1, the relevant document lost its reliability, authenticity at the other hand on account of non -furnishing of document at the end of appellant to controvert the identification of dead body that of Rajni on the basis of photograph remained intact, and having the evidence of witnesses with regard to demand of dowry and further persistent inflection of tortu re and cruelty during midst thereof, absolutely justify the finding recorded by the learned trial court. Consequent thereupon, appeal is fit to be dismissed.
15. After hearing rival contention as well as going through the relevant documents adduced on beh alf of rival parties it is apparent that there is no controversy with regard to death of Rajni Kumari. It is also an admitted fact that at the time of death deceased was in company of appellant. Even as per version of appellant she was taken to hospital by the appellant on 29.08.1999 was provided medical facility at the instance of appellant, death was caused in presence of appellant on 30.08.1999 and her funeral was done in presence of appellant. That means to say presence of appellant right from beginning to end of Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 12.
existence of Rajni is an admission and for that apart from suggestion given to PW-2, PW-3, PW-5, PW-7 & PW-8, DW-1 and DW-2 have also been examined along with exhibits of series of document. It is settled principle of law that whenever DW is examined then in that event the evidence of DW should be accepted on the same scale that than of the evidence adduced on behalf of prosecution as reported in (2010) 12 SCC 350 (Ashok Kumar v. State of Haryana)
16. Because of the fact that defence has come forward with definite case with regard to admission of Rajni on 29.08.1999 at Sadar Hospital, Sitamarhi where, during continuance of treatment died on 30.08.1999, hence this part of evidence has to be seen at first part, so that it conclusively proved will throw out the prosecution version at thrash hold itself. DW-1 was not in way attached during treatment of deceased Rajni as indoor or outdoor patient which he had already admitted. However, has come forward as a formal witness to exhibit the serial no.828 dated 29.08.1999 of Sitamarhi OPD Register (Ext. -B), serial no.402 dated 29.08.1999, indoor register of Sitamarhi Hospital (Ext.-C), serial no.30 dated 30.08.1999 of Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 13.
Sitamarhi hospital as Ext.-D, death certificate as Ext.-E along with the fact that the treating doctor J.P. Bihari is now dead. During cross-examination at para-9 he had admitted that from serial no.818 to 830 of OPD register there happens to be overwriting without having initial. After reading para-10 and 11 conjointly, it is evident that during course of admission of a patient in the indoor register there should be signature of doctor. He had stating that it is not necessary to take signature of patient as well as doctor but he had admitted that with regard to other patient there happens to be signature of doctor however relating to Rajni, no such signature is. Furthermore, from para-12, it is evident that he had admitted that those things were not scribe in his presence. In para -13, he had further admitted that there happens to be overwriting in the indoor register without having initial. He had further admitted that his duty was at Dressing Room as well as at O.T. After having cursory perusal of exhibits, overwriting as well as interpolation are visible relating to relevant entry only and that smacks some sort of foul smell during preparation of aforesaid exhibits. DW-2 is Rama Shankar Singh, co- villager of appellant. He has been brought up by the Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 14.
appellant to exhibit a letter (Ext. -F) which PW-5, Renu Devi, mother of deceased had denied to be in her pen on the pretext that it was written by Renu Devi. He had further stated that Rajni died at Sitamarhi Hospital and her funeral was done in presence of PW-2 father of deceased. During cross-examination at para-15 he had stated that he never met with Renu Devi. In that circumstance how he identified the letter to be in script of Renu Devi is a matter of concern. Now coming to death of Rajni, in para -16, he had said that he had not met with Rajni as she was dauther-in- law of village. However, he had seen her in hospital. In para-17 he had disclosed that he had gone to hospital at 03:15 PM along with Ram Sanjeevan, Shyam Sundar, Chotan and Kedar along with others. On which date neither he stated in his examination-in-chief nor on cross- examination.
17. Appellant, during course of examination of PW -2 para-16, suggested regarding aliment, admission, treatment and death of Rajni at Sadar Hospital. PW -7 during cross- examination at para-14 had stated that he had see n emergency register, death register and enrolment register. In para-15 he had stated that he had recorded statement of Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 15.
Arbind Kumar, Pharmacist and Ram Shankar, Compounder. In para-17 had stated that OPD Serial No.828 followed with enrolment no.402 dated 29.08.1999 suggest that at 03:10 PM Rajni, wife of Lal Kishore Singh of village -Gamhariya, P.S.-Majorganj, District-Sitamarhi was admitted by Dr. J.P. Bihari, Deputy Superintendent of Sitamarhi and she was declared dead at 01:00 AM on 30.08.1999. The death certificate was issued by the Deputy Superintendent. In likewise manner, PW-8 during cross-examination at para-4 and onward had deposed that after going through the relevant registers he found that deceased was admitted on account of obstruction of abdome n and she died on 30.08.1999. He had further stated that he had taken statement of J.P. Bihari. He had further stated that he had obtained photocopy of bed head ticket and other relevant documents, such as patient register, OPD register and got it marked as Ext.-X to X/2 for identification. However, the interpolation, over writing was never perceived by these two IOs and that gives clear cut impression that all were not fair during course of investigation.
18. The consistent version of DW-1 virtually axed upon authenticity, reliability, acceptability of the document Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 16.
as well as evidence of PW-7 and PW-8, nor relating to those parts which could have a lifeline to the appellant. Once those documents are found interpolated, and outcome of forgery, manipulation, maneuvering then in such situation, the document as lost its reliability has become a worthless paper. That means to say, the version of appellant regarding ailment of Rajni, admission to Sadar Hospital, Sitamarhi on 29.08.1999 and her death on 30.08.1999 while undergoing treatment, grant are found of death certificate flashed with provident care.
19. Even then, prosecution cannot be exempted from the obligation whereunder it has to stand on its own leg that means to say it has to prove its case beyond all reasonable doubt?
20. As is evident, while the case was registered at the instance of fardbeyan of PW-1, Dafadar the dead body was not identified. Identification of dead body was on the basis of positive photographs kept at Police Station. Police manual takes care and provide relevant provision permitting to keep positive photograph of an unidentified dead body at Police Station.
Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 17.
21. Rule 272 of the Police Manual contains the provisions whereunder, in case the dead body has not been identified and further if the dead body is allowed to remain under such condition, it will decompose as well as will also put hindrance during postmortem examination, apart from the fact that on account of decomposition, will be unidentifiable then in such circumstance a photogr aph of said dead body has been allowed to be taken and to be kept for future reference along with its placement before Criminal Intelligence Gazette for publication.
22. Therefore, for want of negative as well as non - examination of photographer, there may be lacking of primary evidence on that very score during course of trial for the purpose of admissibility of photograph but so far mode of identification is concerned, that happens to be permissible in the background presence of above referred provision and such identification, as has been reiterated before the court is found substantive evidence whereupon reliance could be placed. That means to say the evidence on the score of identification is found properly adduced as well as is also found appreciable.
Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 18.
23. At this juncture, again the conduct of appellant is to be seen. It is evident that PW -2, Para-21 was suggested that it is not a fact that Ext.2 is not photograph of Rajni, PW-3, Para-6 was suggested that it is false to show that they have wrongly identified the photograph. PW-5, Para- 11, it is not a fact that the photograph does not belong to Rajni, nothing more has been furnished at the end of appellant. Because of the fact that appellant was, according to his own admission by way of conduct as well as entering into defence admitting the deceased in his company at his place, as well as being spouse at least was expected to have controverted the same by way of group photograph or any other photograph of Rajni.
24. The postmortem was conducted over the d ead body by PW-6, Dr. Ashok Kumar Singh who found the following:-.
"External finding - Mouth closed, eyes partially open, bloody froth coming from nostril. Lacerated wound over right brow size ½" x 1/6". Face cyanosed. No external injury over her private part. Internal finding - On opening of skull cranium intact and brain mutter congested. On opening of thorax both legs intact but congested. Throat intact and chamber bulled with dark blood. On opening of neck all structure found normal. On opening of abdominal cavity. All abdomen visiva intact and contested. Stomach contains Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 19.
undigested rice with other food particles. Urinary bladder was partially filled Uterus was normal in size. Vaginal swab was taken for pathological examination (according to pathologist no spermatozoa was found from vaginal swab.) Time elapsed since death and P.M. hold within 48 Hrs. In his opinion the cause of death could not ascertain so the following viscera preserved for chemical analysis. (i) Portion of Liver (ii) Portion of Lunge (iii) Portion of Splan (iv) One whole kidney
(v) Stomach with contents above noted eye brows injury caused by hard and blunt substance.
Regarding rap nothing can be said
conclusively."
25. Although he had clarified on requisition made by the I.O. however preserved the viscera which was examined by FSL and its report is Ext.-6. In terms of Section 293 of the Cr.PC. the report happens to be a public document without attracting formal proof and accordingly, rightly been exhibited. From the report, it is ev ident that thymate was detected which happens to be highly poisonness substance therefore death was otherwise than normal.
26. Now coming to last leg. It is evident from the evidence of all the three PWs that means to say PW -2, PW-
3 and PW-5 that marriage was solemnized on 13.02.1998 and on account thereof, Rajni gone to her Sasural on 14.02.1998. There happens to be specific disclosure that soon after marriage, appellant began to demand of a colour T.V. or Rs.18,000/- and as the aforesaid demand was not Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 20.
fulfilled, he began to torture Rajni. PW -2, father had gone to her place two months after marriage where Rajni had detailed the incidence of torture being inflicted on her for fulfillment of demand of dowry either a colour T.V. or Rs.18,000/-. He further disclosed that he beg before his son-in-law but he did not concede and said that Vidai of Rajni will be effected only when aforesaid demand is fulfilled. He had also threatened to murder. He also said that he will not be allowed to meet in future. He returned back. However, after 8-10 days he again gone to Sasural of Rajni along with his villagers Umesh Choudhary, Sheo Shankar Choudhary as well as one Mahant of Thakurbari and again detailed the event faced by him at that occasion. Then thereafter he narrated that in the month of July, 1999 he had gone to Sasural of Rajni where he had not found both of them. He came to know from others that his daughter and son-in-law along with other friends have gone to pilgrimage. On 07.09.1999 he came to know with regard to arrival of his son-in-law whereupon he had gone there. He met with his son-in-law but could not found his daughter. He became suspicious. On query, the villagers have disclosed that his daughter has been murdered by his Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 21.
son-in-law whereupon he made query f rom his son-in-law who kept mum. The villagers also disclosed that she was not cremated at the village. They have also disclosed that her death did not occur in the village. Then he returned back therefrom and had gone to Sitamarhi Police Station on 11.09.1999 and narrated his woo whereupon the Officer -in- charge shown photograph of a girl whom he identified to be of Rajni. During cross-examination, it is evident that he was not cross-examined on the factum of torture as well as presence of dead body rather he was cross-examined as is evident from para-9 whether any case was earlier instituted against husband for torture. In para -12 he had admitted that neither he had handed over any letter written by Rajni nor photograph of Rajni to the Investigating Officer .
27. PW-3 is the Umesh Chaudhary, his co -villager who reiterated the version given by PW -2, the father. He also claimed to have accompanied the father to the Sasural of Rajni and further identification of dead body through photograph. Even during course o f cross-examination he stood firm over his aforesaid version. Paragraph 5 happens to be the contradiction and the same has been converted to PW-7 under para-23. However, perusal of the same it is Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 22.
evident that only a meager portion is found in a form of contradiction.
28. PW-5 is the mother, Renu Devi who had also reiterated the same version as well as with regard to identification of photograph. During cross -examination at para-12 she had admitted that she had not instituted a case at an earlier occasion with regard to demand of dowry by her son-in-law for treating her daughter with torture and cruelty for fulfillment of the same. In para -16 there happens to be contradiction that she had not stated before the police that Sasuralwala of her daughter was deman ding Rs.18,000/- and a T.V. and further they were threatening to murder her daughter in case of non -fulfillment. As evident from PW-7, para-24.
29. PW-7 is the Investigating Officer who had deposed that on 28.08.1999 while he was Officer -in-charge of Town Police Station, he received confidential information and on account thereof, he rushed to Bhairo Kothi where recorded fardbeyan of Dafadar Md. Noman on account of presence of dead body of a young girl. Because none had claimed identification, on account thereof, photograph was taken. Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 23.
Inquest report was prepared in carbon process (exhibited) and thereafter dead body was sent to postmortem. Inspected the place of occurrence. He further stated that after arrival of Lal Babu Chaudhary to Police Station he was shown photograph whereupon he identified the photograph that of his daughter Rajni and then thereafter he rushed to Sasural of Rajni. He had also gone to the house of Lal Babu Chaudhary where recorded statement of so many persons and as he was transferred, he handed over charge. During cross-examination, as referred above he was confined with regard to defence version relating to inspection of emergency register, death register, enrolment register of Sadar Hospital. In para-21, he had admitted that parents of deceased had not handed over photograph of Rajni.
30. PW-8 is another Investigating Officer who had simply submitted charge sheet after recording statement of one J.P. Bihari, the Deputy Superintendent.
31. In Suresh Kumar v. State of Haryana reported in 2014 CRI. L. J. 551 the Hon'ble Apex Court has minutely observed and explained the ingredients of Section 303(B) IPC, the obligation on the part of prosecution, relevance of Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 24.
Section 113(b) of the Evidence Act, obligation of accused in following way:-
"Ingredients of Section 304 -B of the IPC.
25. Learned counsel for Suresh Kumar made two submissions. It was firstly contended on the merits of the case that there was nothing to suggest that his client was guilty of an offence punishable under Section 304 -B of the IPC. Secondly it was con tended that the High Court ought not to have lightly interfered against an order of acquittal.
26. The actual words used in Section 304B of the IPC are of importance. This section reads as under: -
"304-B. Dowry death- (1) Where the death of a woman is cau sed 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 purpose of this sub-section, "dowry" shall have the same meaning as in Sect ion 2 of the Dowry Prohibition Act, 1961 (2* of 1961).
(2) Whoever commits dowry death Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 25.
shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
27. In a large number of decisions, this Court has indicated the ingredients of Section 304 -B of the IPC, which are now broadly accepted. In Pawan Kumar v. State of Haryana, (1998) 3 SCC 309: (AIR 1998 SC 958: 1998 AIR SCW 721) the ingredients were identified as:
"(a) When the death of a woman is caused by any burns or bodily injury, or
(b) occurs otherwise than under normal circumstances
(c) and the aforesaid two facts spring within 7 years of girl‟s marriage
(d) and soon before her d eath, she was subjected to cruelty or harassment by her husband or his relative,
(e) this is in connection with the demand of dowry."
28. The ingredients of Section 304-B of the IPC were rephrased in Kans Raj v. State of Punjab, (2000) 5 SCC 2 07:
(AIR 2000 SC 2324: 2000 AIR SCW 2093) in the following words:
(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances:
Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 26.
(b) Such death should have occurred
within 7 years of her marriage:
(c) the deceased was subjected to
cruelty or harassment by her husband or by any relative of her husband;
(d) Such cruelty or harassment
should be for or in connection with the
demand of dowry; and
(e) To such cruelty or harassment the
deceased should have been subjected
soon before her death.
29. The expression "otherwise
than under normal circumstances" was
explained to mean "death not in the
usual course but apparently under
suspicious circ umstances, if not caused by burns or bodily injury."
30. A somewhat recent exposition is to be found in Hira Lal v. State (Govt. of NCT). Delhi, (2003) 8 SCC 80: (AIR 2003 SC 2865: 2003 AIR SCW 3570) wherein this Court held that to attract the application of Section 304 -B of the IPC, the essential ingredients are as follows: -
"(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 27.
any relative of her husband.
(iv) 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."
31. More recently the ingredients of Section 304-B of the IPC have been abbreviated in Bakshish Ram v. State of Punjab, (2013) 4 SCC 131: (AIR 2013 SC 1484 : 2013 AIR SCW 1914) in the following words:
"(a) that a married woman had died otherwise than under normal circumstances;
(b) such death was within seven years of her marriage; and
(c) the prosecution has established that there was cruelty and harassment in connection with demand for dowry soon before her death."
32. This „formula‟, though framed in different words by this Court, from time to time, conveys the same meaning of the essential ingredients of an offence punishable under Section 304 -B of the IPC.
33. Importantly, Section 304 -B of the IPC does not categorize death as homicidal or suicidal or accidental. This is because death caused by burns can, in a given case, be homicidal or suicidal or accidental. Similarly, death caused by Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 28.
bodily injury can, in a given case, be homicidal or suici dal or accidental.
Finally, any death occurring "otherwise than under normal circumstances" can, in a given case, be homicidal or suicidal or accidental. Therefore, if all the other ingredients of Section 304 -B of the IPC are fulfilled, any death (whether homicidal or suicidal or accidental) and whether caused by burns or by bodily injury or occurring otherwise than under normal circumstances shall, as per the legislative mandate, be called a "dowry death" and the woman‟s husband or his relative "shall be d eemed to have caused her death". The Section clearly specifies what constitutes the offence of a dowry death and also identifies the single offender or multiple offenders who has or have caused the dowry death.
34. The evidentiary value of the presumption is stated in Section 113 -B of the Evidence Act, 1872 (the Act). The key words in this Section are "shall presume"
leaving no option with a court but to presume an accused brought before it of causing a dowry death g uilty of the offence. However, the redeeming factor of this provision is that the presumption is rebuttable. Section 113 -B of the Act enables an accused to prove his innocence and places a reverse onus of proof on him or her.
35. Section 113-B of the Act reads Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 29.
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, o r in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation-For the purpose of this section „dowry death‟ shall have the same meaning as in Section 304 -B of the Indian Penal Code (45 of 1860) ."
36. That the presumption under Section 113-B of the Act is mandatory may be contrasted with Section 113 -A of the Act which was introduced contemporaneously. Section 113 -A of the Act, dealing with abetment to suicide, uses the expression "may presume". T his being the position, a two stage process is required to be followed in respect of an offence punishable under Section 304 -B of the IPC: it is necessary to first ascertain whether the ingredients of the Section have been made out against the accused: if the ingredients are made out, then the accused is deemed to have caused the death of the woman but is entitled to rebut the statutory presumption of having caused a dowry death."
Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 30.
32. Summarizing the evidence, it is evident that there happens to be no denial nor having the date of marriage under controversy that means to say the date of marriage as 13.02.1998 happens to be uncontroverted.
33. Death of Rajni is also found out of controversy. As per Ext.6, it happens to be on account of thimet, otherwise than normal circumstance after having the defence version impaled.
34. Under garb of aforesaid factual position, death of Rajni is found within seven years of marriage.
35. From the evidence of PW-2, PW-3 and PW-5 there happens to be consistent version that appellant was persistently demanding dowry and for that, soon before her death the deceased was subjected to torture.
Having the aforesaid ingredients duly fulfilled, in that event Section 113B of the Evidence Act comes into play whereunder the court is bound to presume the death to be a dowry death unless and until rebutted by the accused.
36. As Discussed in forgoing paragraph on account of specific plea of appellant th at deceased was admitted for Patna High Court CR. APP (SJ) No.151 of 2012 dt.04-04-2014 31.
treatment of her ailment at Sadar Hospital, Sitamarhi on 29.08.1999 and her death on 30.08.1999 while she was under going treatment at Sadar Hospital, Sitamarhi was thoroughly tested and on account of interpolation, overwriting relating to all the specific documents the plea of appellant found untrustworthy. Therefore, the obligation under Section 113(B) of the Evidence Act is not found properly discharged.
37. Consequent thereupon, the prosecution is found successful in proving its case and on account thereof, the finding recorded by the learned lower court in consonance with the sentence is found legally maintainable. Hence appeal is dismissed. Appellant is under custody. As such is directed to serve out the remaining part of s entence.
(Aditya Kumar Trivedi, J.) PATNA HIGH COURT DATED, THE 7th day of April, 2014 PRAKASH NARAYAN __ |__| U |__| T