Patna High Court
Manoranjan Thakur @ Ranjan Thakur vs The State Of Bihar on 19 February, 2014
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.853 of 2012
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Manoranjan Thakur @ Ranjan Thakur, S/o- Shri Shyam Sunder Thakur,
resident of village-Malahi Tola, P. S. Hisua, District- Nawada.
.... .... Appellant/s
Versus
The State Of Bihar .... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Raj kumar- Advocate
For the Respondent/s : Mr. S. N. Prasad- A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 19-02-2014
Sole appellant, Manoranjan Thakur @ Ranjan
Thakur, who has been found guilty for an offence punishable under
Section 304(B)/34 of the Indian Penal Code and directed to undergo
rigorous imprisonment for ten years, under Section 201/34 of the
Indian Penal Code and directed to undergo rigorous imprisonment
for three years vide judgment of conviction dated 23.08.2012 and
order of sentence dated 24.08.2012 by Ad hoc Additional Sessions
Judge-II, Nawadah in Sessions Trial No.113 of 2011/ 93 of 2012
preferred instant appeal challenging the same.
2. PW-2 Vikram Kumar gave his fard-bayan on
25.10.2010at Hisua Police Station disclosing therein that his elder sister Suprita Devi aged 27 years was married with Manoranjan Thakur @ Ranjan Thakur son of Shyam Sunder Thakur of Hisua Maithali Tola on 03.07.2005 according to Hindu Rites and rituals. At the time of marriage, he had gifted according to his means. Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 2 During her stay at her sasural, she had begotten three children aged about three and half years, two year, one years. Since after marriage, husband Manoranjan Thakur, brother in-law Ranjeet Thakur and mother in-law (named not known) have advanced their demand of Rs.1,00,000/- (Rs. One lac) in cash and a motorcycle in lieu of dowry. He, being a poor peasant was unable to fulfil the same. Whenever his sister made protest, she was assaulted by aforesaid three persons as well as she was also regularly mentally tortured. On 20.10.2010 in the evening hours, he received call from an unknown, divulging the fact that after murder of his sister her dead body has been concealed by her ‗Sasuralwala'. After getting this information, he along with his mother Indira Devi came to Hisua and then had gone to sasural of his sister. They found lock hanging. On query from neighbours, he came to know that Ranjan Thakur had gone along with children after locking the house in the morning of 16.10.2010, but was not accompanied by his sister as well as one child. In the aforesaid background, the informant formed opinion with regard to murder of his sister along with child in the background, non-fulfilment of demand of dowry as well as getting dead body concealed/ disposed of.
3. On the basis of the aforesaid fard-bayan, Hisua P. S. Case no.143 of 2010 was registered under Section 304(B), 201, Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 3 34 of the Indian Penal Code against husband, brother in-law, mother in-law and followed with the investigation. After completing the same, charge sheet was submitted only against the appellant while the investigation has been kept opened with regard to other co- accused. The learned Chief Judicial Magistrate, Nawadah took cognizance of an offence against the appellant consequent thereupon the trial commenced and concluded in a manner, the subject matter of instant appeal.
4. The defence case as is evident from mode of cross- examination as well as statement recorded under Section 311 of the Cr. P. C. is of complete denial of occurrence. It has also been pleaded that deceased was carrying illicit relationship with PW-4 Shyamal Kishore Thakur and on having exposure of the aforesaid intimate relationship, it is he (PW-4) who had murdered her. Furthermore, it has also been suggested that the marriage was solemnized in the year 2002 and not in the year 2005, as divulged by the prosecution. On that very score, apart from examination of two DWs, a Lagan Patri (Exhibit-A) has also been brought up on record.
5. While assailing the judgment of conviction and sentence, it has been submitted on behalf of appellant that first of all the prosecution should have come with positive, concrete, trustworthy evidence with regard to death of deceased. It has also Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 4 been submitted that plea of defence should not be taken into account because of the fact that the onus in terms of Section 113(B) of the Evidence Act will shift only when prosecution succeeds in proving all the ingredients so prescribed with regard to Section 304(B) I.P.C.
6. It has been submitted that a dead body was recovered which was completely decomposed and was not identifiable which is itself evident from the evidence of Doctor (PW-
3) Paragraph-3 and on account thereof, it was bounded duty of the prosecution to have substantiated with the cogent, conclusive evidence that the dead body, which was recovered, was the dead body of Suprita Devi and for that at least ‗DNA' test should have been carried out. More particularly, when the defence had categorically suggested prevalence of intimate relationship amongst PW-4 with deceased and further suggesting that it was PW-4 at whose instance, at whose involvement there happens to be disappearance of Suprita Devi, so submitted that the first ingredient of Section 304(B) of the Indian Penal Code on account of non- identification of deceased, is found deficient one as controversy still persist regarding death of Suprita.
7. It has then been submitted that as per prosecution version the date of marriage has been shown as 03.07.2005 which the appellant had categorically challenged. Prosecution could not be Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 5 able to bring forward any supportive documents by way of corroboration of the oral evidence contrary to it, apart from suggesting each and every PWs, also examined two DWs as well as had also exhibited Lagan Patri as Exhibit-A. Hence, the version of the defence looks more plausible than that of prosecution and counting there from, the barrier having been prescribed therefor is found safely crossed. That means to say, period of seven years, mandated under Section 304(B) of the Indian Penal Code is found not proved.
8. Now coming to the demand of dowry, it has also been submitted that from the evidence of PW-2, the informant, it is apparent that the case was instituted after duly consultation and that happens to be reason behind introduction of certain allegations in the fard-bayan otherwise, the evidence of prosecution witnesses on that very score is found full of contradiction, embellishment as well as due development is also perceived. Consequent thereupon, the demand of dowry is found a patch work while proceeding with the prosecution version.
9. With regard to torture exhorted upon the deceased soon before the occurrence, another limb of Section 304(B) of the Indian Penal Code has also been controverted by the learned counsel for the appellant. On this score, it has been submitted that from the Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 6 evidence of all the PWs inconsonance with the evidence of PW-6 (Investigating Officer), material contradictions in the evidence of witnesses on this score is found duly exposed and as such, the prosecution utterly fails.
10. Apart from this, it has also been submitted that own brother in-law (Bahnoi) of PW-2 and at whose instance the marriage was finalized while being examined as PW-5 had gone volte-face to the prosecution. It has also been submitted that there happens to be inordinate delay in launching the prosecution and on that very score, there happens to be conflicting version of PW-1 mother of deceased as well as PW-2, informant as well as brother of deceased. This crucial aspect is indicative of the fact that on one pretext or the other the appellant has been victimized without any rhyme and reason.
11. It has further been submitted that from the evidence of PW-6, the Investigating Officer, it is apparent that he had not conducted investigation of this case in impartial manner. After going through evidence, it is apparent that he had not gone inside the house of the appellant. He had not examined neighbours of the appellant who could have exposed the actual event and in likewise manner none were cited as prosecution witnesses. So, by his illegal activity or incompetency he had blurred the fate of the Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 7 appellant side by side by his defective or collusive investigation interest of the appellant is found prejudiced. Therefore, it has been submitted that prosecution has not succeeded in proving its case beyond all reasonable doubt. As such, the judgment of conviction and sentence so recorded by the learned trial Court happens to be bad, illegal, perverse and is fit to be set aside.
12. On the other hand, the learned Additional Public Prosecutor while supporting the finding so recorded by the leaned trial Court submitted that "falsus in uno falsus in omnibus" is not applicable and that happens to be reason behind prevalence of theory of separating the chaff from brain that means to say separate the truth from the falsehood and for that, an obligation has been put over shoulder of courts to discharge their functions under such manner while appreciating the evidence of a witness. It has further been submitted that from the fard-beyan itself it is apparent that prosecution witnesses are resident of far-far away from P.O. village, which the defence had himself tested by cross-examining PW-2 and on account thereof, the delay whatever may be is not at all found to be hazardous to the prosecution case. Then it has been submitted that from the evidence of prosecution witnesses including PW-6 the Investigating Officer, none of the family members of the appellant including the appellant along with his children, wife (deceased) was Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 8 traced out at the time of their presence at the place of occurrence instead thereof the house was properly locked and that happens to be circumstance which the accused should have explained.
13. Now coming to demand of dowry as well as torture meted out by the deceased soon before her death is itself found incorporated right from fard-beyan. Mere not stating the incidence in a way as incorporated under statement in terms of Section 161 of the Cr. P. C. may be a logical contradiction but not a material contradiction, in some and circumstance, and which is itself found from the evidence of PW-6. Therefore, there happens to be no material contradiction which could go to the root of the prosecution case.
14. It has further been submitted that neither PW-6 was cross-examined on the score that the dead body was not that of Suprita Devi nor the Doctor (PW-3) was ever cross-examined that the dead body was not identifiable. Not only this, the inquest report on this very score has also not been challenged more so when the ocular evidence so stated by PW-1 and PW-2 claiming to have identified the dead body that of deceased. It has further been submitted that accused was very much conscious on this very score and that happens to be reason behind while suggesting PW-2, he was suggested that on account of illicit relationship with PW-4 Shyamal Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 9 Kishore Thakur, she was done to death by Shyamal Kishore Thakur or at the instance of Shyamal Kishore Thakur who had got her dead body concealed and in the aforesaid background, it has also been submitted that the controversy so raised on behalf of appellant regarding death as well as identification of dead body vanished. At the present juncture, it has also been submitted that deceased being one of the inmates of appellant and was being cared thereby was under obligation to explain that in what manner deceased had gone missing from his place.
15. Then it has been submitted that in similar manner the controversy with regard to date of marriage as propounded by the appellant is nothing but an event so brought up by the appellant out of despairing condition. To support the same, it has been submitted that two DWs have been examined. The first one who had got not connection with the family affairs of appellant while the second one also carrying similar status proved formal by way of exhibiting Lagan Patri. Having no evidence of having been prepared in his presence after performing rituals as well as having no evidence of being served with a copy thereof on prosecution party, so submitted that in the facts and circumstances of the case, the findings so recorded by the learned lower Court did not require interference.
Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 10
16. Apart from exhibiting the documentary evidence being the fard-beyan, signature over fard-beyan, formal first information report, post mortem report etc. it is also evident from the lower court record that altogether six PWs have been examined out of whom PW-1 is Indira Devi the mother, PW-2 is Vikram Kumar Jha the brother (informant of the case), PW-3 Dr. Rajendra Kumar who had conducted post mortem, PW-4 Shyamal Kishore Thakur co-resident of appellant as well as related with both the parties, PW- 5 Rajiv Kumar Mishra brother in-law (Bahnoi) of PW-2 and PW-6 Bindiyachal Prasad the Investigating Officer. In likewise manner two DWs have also been examined. DW-1 Putul Devi while DW-2 Sambhu Pandey and have also exhibited Lagan Patri as Exhibit-A.
17. The Hon'ble Apex Court in Kashmir Kaur and Another Vrs. State of Punjab reported in 2013 Criminal Law Journal Page-689 has dealt with the matter in detail and it looks better to incorporate the same:-
9............ Before dealing with the facts involved in these appeals, we feel it appropriate to state the requirement of law in regard to offences falling under Sections 304B and 498A of IPC while convicting the accused for the said offences. In this respect, it will be worthwhile to deal with some of the earlier decisions of this Court where the Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 11 legal principles in regard to the above said provisions have been dealt with and the principles of law laid down therein. As we are concerned with Sections 304B and 498A IPC, the said provisions along with Section 113B of the Evidence Act are relevant. The same are extracted hereinunder:
―304B. 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 purpose of this subsection, ―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.
498A. Husband or relative of
husband of a woman subjecting her to
Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 12
cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.-For the purpose of this section, ―cruelty‖ means-
(a) any willful conduct which is of such a nature as is likely to derive 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 or is on account of failure by her or any person related to her to meet such demand.
113B. 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 tocruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 13 caused the dowry death.
Explanation.- For the purposes of this section, ―dowry death‖ shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).‖
10. As regards the principles concerning the above referred to provisions we wish to refer to the decisions reported in K. Prema S. Rao and another V. Yadla Srinivasa Rao and others - (2003) 1 SCC 217, Kaliyaperumal and another V. State of Tamil Nadu - (2004) 9 SCC 157, Devilal V. State of Rajasthan - (2007) 14 SCC 176, and Ashok Kumar V. State of Haryana -
(2010) 12 SCC 350.
11. In K. Prema S. Rao (supra) it has been held as under in paragraph 16:
―......To attract the provisions of Section 304-B IPC, one of the main ingredients of the offence which is required to be established is that ―soon before her death‖ she was subjected to cruelty and harassment ―in connection with the demand for dowry‖.‖......
12. In Kaliyaperumal (supra) paragraph 5 is relevant for our purpose which reads as under:
5. A conjoint reading of Section 113-B Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 14 of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ―death occurring otherwise than in normal circumstances‖.
The expression ―soon before‖ is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led in by the prosecution. ―Soon before‖ is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression ―soon before her death‖ used in the substantive Section 304-B IPC and Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 15 Section113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression ―soon before‖ is not defined. A reference to the expression ―soon before‖ used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term ―soon before‖ is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ―soon before‖ would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and life link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.‖
13. In Devilal (supra) the ingredients Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 16 of the provisions of Section 304B as laid down in Harjit Singh V. State of Punjab -
(2006) 1 SCC 463 and Ram Badan Sharma V. State of Bihar - (2006) 10 SCC115 have been clearly set out in paragraph 20 which reads as under:
―The question, as to what are the ingredients of the provisions of Section 304- B of the Penal Code is no longer res integra. They are: (1) that the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal; (2) such death occurs within 7 years from the date of her marriage; (3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (4) such cruelty or harassment should be for or in connection with the demand of dowry; and (5) it is established that such cruelty and harassment was made soon before her death. (See Harjit Singh v. State of Punjab and Ram Badan Sharma v. State of Bihar).‖
14. In Ashok Kumar, to which one of us was a party (Hon'ble Dr. Justice B.S. Chauhan), paragraphs 19, 20, 21 and 23 are relevant for our purpose which read as under:
―19. We have already referred to the provisions of Section 304-B of the Code and Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 17 the most significant expression used in the section is ―soon before her death‖. In our view, the expression ―soon before her death‖ cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme of the Act. Further, the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other.
20. We are of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. This Court in Tarsem Singh v.State of Punjab, held that the legislative object in providing such a radius of time by employing the words ―soon before her death‖ is to emphasize the idea that her Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 18 death should, inall probabilities, has been the aftermath ofsuch cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry related cruelty or harassment inflicted on her.
21. Similar view was expressed by this Court in Yashoda v. State of M.P., where this Court stated that determination of the period would depend on the facts and circumstances of a given case. However, the expression would normally imply that there has to be reasonable time gap between the cruelty inflicted and the death in question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this section. However, there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient, whereafter, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 19 definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of a given case.
23. The Court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favour. In other words, the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of Section 304-B. Where other ingredients of Section 304-B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of Section 304-B, the Court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 20 support of the substantive charge under Section 304-B of the Code.
15. The decision in Ashok Kumar (supra) was subsequently followed in Pathan Hussain Basha V. State of A.P. -
JT 2012 (7) SC 432, to which again one of us was a party (Hon'ble Mr. Justice Fakkir Mohamed Ibrahim Kalifulla).
16. From the above decisions the following principles can be culled out:
(a) To attract the provisions of Section 304B IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry.
(b) The death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal.
(c) Such death occurs within seven years from the date of her marriage.
(d) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband.
(e) Such cruelty or harassment should be for or in connection with demand of dowry.
(f) It should be established that such Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 21 cruelty and harassment was made soon before her death.
(g) The expression (soon before) is a relative term and it would depend upon circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence.
(h) It would be hazardous to indicate any fixed period and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act.
(i) Therefore, the expression ―soon before‖ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate or life link between the effect of cruelty based on dowry demand and the concerned death. In other words, it should not be remote in point of time and thereby make it a stale one.
(j) However, the expression ―soon before‖ should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results.
Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 22
(k) Section 304B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian Law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B.
(l) Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304B were not satisfied.
(m) The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to, the time of her death and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence.
Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 23
18. Keeping with the aforesaid principle in mind, now the factual aspect of case is to be judged.
19. From the evidence on record, it is evident that marriage of Suprita Devi with the appellant is not at all denied. Appellant has raised controversy with regard to date of marriage. According to prosecution, the date of marriage happens to be 03.07.2005 while according to the appellant marriage had consummated in the year 2002. Therefore, first of all, the evidence on this very score adduced on behalf of rival parties is to be looked into. PW-1, mother of Suprita Devi had disclosed that she was married with Manoranjan Thakur @ Ranjan Thakur in the year 2005. During her cross-examination, it is evident that she was not at all cross-examined on that very score nor she was suggested on this score contrary to whatever being deposed by her.
20. PW-2, informant who happens to be brother of Suprita Devi had disclosed that she was married with Manoranjan Thakur @ Ranjan Thakur on 03.07.2005. During cross-examination, he was also not cross-examined on that very score however as is evident from paragraph-3 of his cross-examination, he was suggested that it is not a fact that her marriage was solemnized in the year 2002 and not on 03.07.2005. In likewise manner PW-4 had also deposed disclosing therein that Suprita Devi was married with Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 24 Manoranjan Thakur @ Ranjan Thakur on 03.07.2005. Again this witness was not cross-examined on that very score, save and except, under paragraph-4 of his cross-examination by way of suggestion which he had denied regarding solemnization of marriage in the year 2002. It has further been suggested that during course of his statement before the police, he had not disclosed the date of marriage as 03.07.2005. From the evidence of PW-6 (Investigating Officer) paragraph-5, it is apparent that this PW had not disclosed before the police regarding date of marriage of Suprita Devi as 03.07.2005.
21. PW-5 though declared hostile although happens to be brother in-law of deceased and was middleman during course of negotiation had disclosed the date of marriage as 03.07.2005 that part had about been cross-examined. PW-6 at paragraph-3 of his cross-examination had denied presentation of any short of document at the end of appellant disclosing the year of marriage as 2002.
22. On this score, the defence had also examined two DWs. DW-1 is Putul Devi, co-villager who has admitted marriage, however in the year 2002. During cross-examination, it is evident that she had not been specifically cross-examined on that very aspect, but she happens to be outsider having no concern with the affair of family is itself stated by her. DW-2 is Shambhu Pandey Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 25 who is resident of different village and happens to be formal in nature who has simply exhibited the Lagan Patri allegedly prepared by one Brajesh Nandan Pandey @ Birja Pandey and a copy thereof was sent to the family of deceased. His status in that capacity loosen authenticity because of the fact that neither the document was prepared in his presence nor a copy thereof was sent to the bride family. As such, having analytical approach of the evidence of rival parties the date of marriage is found to be conclusively proved and is accordingly held as 03.07.2005.
23. The next circumstance is to be seen whether the death was within the seven years of marriage. At the present moment it looks pertinent to consider the suggestion given by the appellant to the prosecution witnesses. The necessity for appreciation of aforesaid theme at a first count has arisen on account of controversial stand taken up by the appellant while cross- examining the individual witnesses more so, did not deny presence of Suprita Devi at his place during course of occurrence so alleged. During suggestion given to PW-1 under paragraph-6, it was suggested that it is not a fact that her daughter had not died, but she was residing at a place away from Sasural having within their full knowledge. PW-2 was suggested that it is not a fact that his sister was characterless and had developed illicit relationship with Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 26 Shyamal Kishore Thakur and used to flee from her Sasural under such pretext and it appears that during course thereof, some unknown miscreants raped her and then committed murder. PW-4 was suggested under paragraph-6 of his cross-examination that he had fallen under illicit relationship with her and perhaps she used to stay on account of which there was dispute and in the aforesaid background he had committed murder of deceased. PW-5 did not depose on that very score so was declared hostile.
24. After institution of the case, dead body was recovered during course of investigation which was identified that of Suprita Devi by the witnesses, inquest report was prepared. The dead body was sent for post mortem having absolute identification.
25. PW-3 had conducted post mortem examination on 30.10.2010 over the dead body of Suprita Devi and found following ante mortem injuries.
(1) Lacerated injury on lower abdomen (more on ingual region of size 6‖ x 4‖ into deep to abdominal cavity.
(2) Lacerated injury on left upper face 1/ 3‖x1/ 3‖. (3) The skin of hand and feets blist. The face appears safted and fedded white color.
On dissection- (I) Heart Chamber empty.
(2) Stomach empty.
Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 27 (3) Uterus is normal size.
(4) Fracture of right pelvic bone.
Cause of death due to above mentioned findings due to shock and haemorrhage caused due to hard and blunt objects. Time elapsed since death 5 to 8 days. During course of examination, there happens to be complete absence of cross-examination over status of body being unidentifiable.
26. PW-6 the Investigating Officer had prepared inquest report after recovery of dead body belonging to deceased Suprita Devi. It is evident that these two witnesses were not at all cross-examined on the score whether the body was decomposed and on account thereof, it was not fit for identification.
27. PW-1 had stated that dead body of her daughter was traced out by the police near Tilaiya river. She had identified the dead body through hair, teeth, face etc. During cross-examination at paragraph-4, she had stated that probably the dead body was recovered on 28.10.2010. At the time of recovery of dead body, she was present there. Dead body was buried. Skin was present. PW-2 had not spoken on that very pretext and in likewise manner he was not cross-examined and that happens to be also the status of PW-4. Hence after considering the material available on record it is now found manifestly clear that the dead body so recovered was of Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 28 Suprita Devi, deceased. Therefore, the death of deceased is found to be within seven years of marriage and on that very score the evidence of prosecution is found creditworthy as well as being additionally supported by defence itself.
28. Now, the remaining ingredients happens to be demand of dowry as well as torture inflicted upon deceased soon before her death. On that very score, it is evident right from fard- beyan that husband, brother in-law (Dewar) and mother in-law have advanced demand of Rs. One lac cash as well as a motorcycle. From the evidence of PW-1 paragraph-1, she had stated with regard to demand of Rs. One lac and a motorcycle. During cross-examination at paragraph-2, she had stated during cross-examination that while deceased along with her husband and brother in-law (Nandosi) had come to her place, there was dispute with regard to demand of dowry, but she had not lodged any case at the police station on the assurance given by her daughter that she will manage the thing. Nothing more has been cross-examined on that very score.
29. PW-2 had stated in his examination in-chief that they (accused) have demanded Rs. One lac and a motorcycle which they were unable to fulfil on account of their meager economic condition. Few days before the occurrence, they have threatened over mobile phone that either arrange the same or they will murder Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 29 the deceased. He had talked and further a day before occurrence his deceased sister had disclosed that they are threatening to kill. During cross-examination at paragraph-2, he had admitted that he had not reported either before Mukhiya or Sirpanch or Police Station regarding demand as well as torture whereunder deceased was subjected for fulfilment of dowry. He had further disclosed that for the first time he has deposed like so. He had further disclosed that it was demanded in the year 2005 itself in presence of his parents as well as they have also demanded over telephone. He had further stated that neither any demand was made nor torture was affected in presence of outsider. In paragraph-4, he had stated that he had divulged before the police official that few days before the alleged date of occurrence her Sasuralwala had threatened that the demand should be fulfilled otherwise she will be murdered. PW-4 had also stated that the mother in-law, brother in-law (Dewar) and husband demanded Rs. One lac and a motorcycle which could not be fulfilled on account of poor financial condition and for that, the deceased was subjected to torture. During cross-examination at paragraph-3, he had stated that he had got no documentary proof with regard thereto. He had not informed anybody regarding demand of Rs. One lac as well as a motorcycle.
30. From the evidence of PW-6, the Investigating Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 30 Officer, it is apparent that some short of illegality has been committed by the learned trial Court during course of recording of evidence because of the fact that the contents of fard-beyan was to be confronted by the informant only who happens to be the maker of the documents and not by the Investigating Officer. He had incorporated the same under paragraph-3 of cross-examination. Moreover, after going through the fard-beyan, it is evident that there happens to be specific disclosure with regard to demand of dowry as well as treating the deceased with cruelty as well as torturing her. It is also evident from the PW-2 that few days before of death of deceased the accused persons have threatened that they will kill his sister otherwise arrange the money and that part, as is evident from paragraph-3 of PW-6 is not a contradiction. Nay the defence has been above to deface even cross-examining him under paragraph-2 of the cross-examination. Therefore, demand of dowry as well as torture subjected upon deceased soon before her death is found coherent from the evidences of PWs.
31. Now, coming to the other aspect, after perusal of the lower court record, it is evident that the statement so recorded under Section 313 of the Cr. P. C. did not satisfy the mandate of law. From perusal of the same, it is apparent that the learned lower Court had acted in most casual perfunctory manner as well as contrary to Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 31 the requirements so laid down under Section 313 of the Cr. P. C. for better appreciation Section 313 of the Cr.P.C. is quoted below.
313. Power to examine the accused:- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court--
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally on the case:
Provided that in a summons-case where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under sub-section (1) (3) The accused shall not render himself liable to punishment by refusing to answer such question, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he had committed.
(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this Section.
32. The learned lower Court had discharged his function in following manner.
Q. Kya aapne gawaho ki gawahi suna hai?
A. Ha.
Q. Aapke virudh aarop awam sakshya ha ki Aap Wadi ki Bahan Suprita Devi jo Aapki Patni Thi Uski Hatya Dahej ki Mang ko lekar kar diya tatha uski Patna High Court CR. APP (SJ) No.853 of 2012 dt.19-02-2014 32 lash ko Hisua Nala me Gar diya ?
A. Nahi.
Q. Safai me kya kahna ha ?
A. Nirdosh ha.
33. The requirement of law happens to be that every sort of incriminating article so persisting on the record having brought up by the prosecution should be confronted to the accused so that he be able to explain the circumstances properly. As stated above, as the learned lower Court had not discharge his function on that very score in accordance with law, did not justify its concurrence. Hence, the judgment impugned is set aside. Appeal is allowed. The matter is remitted back to the learned lower court to proceed afresh from the stage of recording of statement and will pass a judgment in accordance with law.
(Aditya Kumar Trivedi, J) Patna High Court, Dated-19th, Feb. 2014 Vikash/-
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