Patna High Court
Manu Sharma @ Munnu Sharma vs The State Of Bihar on 19 June, 2024
Author: Jitendra Kumar
Bench: Ashutosh Kumar, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.554 of 2017
Arising Out of PS. Case No.-69 Year-2014 Thana- RAMGARH District- Kaimur (Bhabua)
======================================================
Manu Sharma @ Munnu Sharma son of Late Ramnarayan Sharma, R/o
Village- Ramgarh, P.S.- Ramgarh, District- Kaimur at Bhabua.
... ... Appellant
Versus
The State Of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant : Mr. Ramakant Sharma, Sr. Advocate
Mr. Tribhuwan Narayan, Advocate
For the State : Mr. Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)
Date : 28-06-2024
The present appeal has been preferred against the
judgment of conviction and order of sentence dated 24.03.2017
and 28.03.2017 respectively passed by Ld. Additional Sessions
Judge-VI, Kaimur at Bhabua in Sessions Trial No. 68 of 2015
(Trial No. 152/2016) arising out of Ramgarh P.S. Case No. 69 of
2014 registered against three accused persons, including the
Appellant herein, for the offences punishable under Section
304(B) read with Section 34 of the Indian Penal Code.
2. By the impugned judgment, the Appellant has been
found guilty for the offence punishable under Section 304(B)
and Section ¾ of Dowry Prohibition Act and he has been
sentenced to undergo life imprisonment and to pay a fine of Rs.
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20,000/- under Section 304(B), and in case of default to pay the
fine, to undergo additional simple imprisonment for six months,
and to undergo simple imprisonment of one year and to pay a
fine of Rs. 5,000/- under Section ¾ of Dowry Prohibition Act
and in case of default to pay the fine, to undergo additional
simple imprisonment for three months.
3. The prosecution case, as unfolded by the
fardebayan of the informant Dinanath Sharma on 21.04.2014 at
18:10 O'clock at the house of the Appellant to the police officer
is that he had married off his daughter Jyoti Kumari @ Rina to
the Appellant/Manu Sharma three years back as per Hindu Rites
and Customs. After the marriage, his daughter started living at
her matrimonial home, but since then, the son-in-law/Appellant
Manu Sharma and his elder brother Munna Sharma and wife of
Munna Sharma started pressurizing his daughter to bring
additional dowry i.e. golden chain and other items and on
account of non-fulfillment of the same, she was subjected to
harassment. On being informed by his daughter, the informant
and other persons went to the matrimonial home of his daughter
to persuade them not to do such things. But despite that, the
people of the matrimonial home kept subjecting his daughter to
torture. On the day of the fardebayan, the informant got
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information at 5:00 O'clock in the evening that his daughter has
been killed by his son-in-law Manu Sharma (Appellant) and his
brother Munna Sharma and wife of Munna Sharma and they are
preparing for her last rites. After this information, the informant
along with his son and brother came to the matrimonial home of
his daughter and found that his daughter Jyoti Kumari @ Rina
has been killed and kept on a cot in the verandah and
preparation was going on for her last rites. On seeing the dead
body, he found that she was strangulated by rope to death. In his
fardebayan, he has claimed that his daughter Jyoti Kumari @
Rina has been killed by his son-in-law Manu Sharma
(Appellant), his brother Munna Sharma and the wife of Munna
Sharma.
4. After lodging of the F.I.R., investigation
commenced and after investigation, charge-sheet bearing no. 88
of 2014 dated 31.10.2014 was submitted against all the three
F.I.R. Accused persons, including the Appellant for the offence
punishable under Section 304(B) read with Section 34 of the
Indian Penal Code. Thereafter, cognizance of the offence
punishable under Section 304(B) read with Section 34 of the
Indian Penal Code against all the three Accused persons and the
case was committed to the Court of Sessions and the charge was
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framed by the Sessions Court on 15.05.2015 under Section
304(B) read with Section 34 of the Indian Penal Code and also
under Section 302 read with Section 34 of the Indian Penal Code
and Section ¾ of the Dowry Prohibition Act read with Section 34
of the Indian Penal Code. The charges were read over and
explained to the Accused persons for which they pleaded not
guilty and claimed to be tried and hence, the trial commenced.
5. During trial, the following six witnesses were
examined on behalf of the prosecution:-
(i) P.W.-1 - Munna Sharma (Brother of the deceased)
(ii) P.W.-2 - Pawan Sharma (Brother of the deceased)
(iii) P.W.-3 - Gorakh Sharma (Uncle of the deceased)
(iv) P.W.-4 - Dinanath Sharma (Informant and father
of the deceased)
(v) P.W.-5 - Shayamla Kumar (Investigating Officer)
(vi) P.W.-6 - Dr. Jitendra Nath Singh (who conducted
the postmortem examination on the dead body of the
deceased)
6. During trial, the prosecution has also brought on
record the following documentary evidence:-
(i) Ext. 1 - Signature on the seizure list;
(ii) Ext. 1/1 - Signature of Pawan Sharma on
fardebayan;
(iii) Ext. 1/2 - Signature of the informant on the
fardebayan;
(iv) Ext. 2 - Inquest Report
(v) Ext. 3 - Signature on the seizure list
(vi) Ext. 4 - The fardebayan
(vii) Ext. 5 - Endorsement on the fardebayan
(viii) Ext. 6 - Formal FIR
(ix) Ext. 7 - Copy of the postmortem report
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7. After closure of the prosecution evidence, the
Appellant herein was examined under Section 313 Cr.PC
confronting him with incriminating circumstances which came
into prosecution evidence so as to afford him opportunity to
explain those circumstances. During this examination, he has
stated that he had heard the evidence of the prosecution.
However, he has not explained those circumstances. But he has
stated that the prosecution evidence are false. He has also stated
that his marriage with the deceased, Jyoti Kumari was solemnized
in 2006. He has also claimed that he is innocent. He has also
examined three witnesses in his defence, who are as follows:
(i) D.W.-1, Rambadhai Pandey
(ii) D.W.-2, Radheshyam Sharma
(iii) D.W.-3, Vansh Narayan Sharma
8. Ld. Trial Court, after appreciating the evidence on
record and considering the submissions of the parties, passed the
impugned judgment whereby Ld. Trial Court has found only the
Appellant guilty of offence punishable under Section 304(B) of
the Indian Penal Code and Section ¾ of Dowry Prohibition Act
and other co-accused, namely, Munna Sharma and Kumkum
Devi were acquitted of all the charges. The appellant has not
been found guilty under Section 302 of the Indian Penal Code.
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The co-accused, namely, Munna Sharma and Kumkum Devi
have been acquitted in view of the finding that they were
separate in mess and business with the Appellant and they had
nothing to do with the matrimonial life of the Appellant and his
deceased wife. The Appellant has been directed to undergo
imprisonment for life under Section 304(B) of the Indian Penal
Code and to pay a fine of Rs. 20,000/- and in case of default to
pay the fine, he has been directed to undergo additional simple
imprisonment for six months and to undergo simple
imprisonment of one year and to pay a fine of Rs. 5,000/- under
Section ¾ of Dowry Prohibition Act and in case of default to
pay the fine, to undergo additional simple imprisonment for
three months.
9. We have heard the learned Counsel for the
Appellant and Ld. APP for the State.
10. The learned Counsel for the Appellant submits that
the impugned judgment of conviction and order of sentence
passed by the Trial Court are not sustainable in the eye of law or
on facts. The Trial Court has not applied his judicial mind and has
failed to properly appreciate the evidence on record. He also
submits that the prosecution has failed to prove its case against
the Appellant beyond all reasonable doubts. There is no cogent
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evidence on record to fasten the Appellant with guilt as alleged by
the prosecution.
11. To substantiate his claim, the Counsel for the
Appellant submits that all the non-official prosecution witnesses
are related and interested and no independent witnesses have been
examined by the prosecution and hence, they cannot be relied
upon for conviction of the Appellant. He further submits that the
alleged occurrence had taken place beyond seven years of the
marriage. He refers to defence witnesses, who have deposed that
marriage of the Appellant with the deceased was solemnized in
2006 and as such, the alleged occurrence had taken place in the
year 2014, i.e. after about seven years of marriage. He also
submits that the Trial Court has failed to appreciate the defence
witnesses that the deceased Jyoti Kumari was suffering from
arthritis and on account of depression, she committed suicide. He
also submits that there are discrepancies and contradictions in the
statements of the witnesses, making dent into the prosecution case
with regard to sentence, the learned Counsel for the Appellant
also submits that in the given facts and circumstances, awarding
of maximum punishment to the Appellant under Section 304(B)
of the Indian Penal Code is in no way justified in view of the
young age of the Appellant and first offence of the Convict.
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12. However, the learned APP for the State submits
that there is no illegality or infirmity in the impugned order and
sentence. The prosecution case against the Appellant is well
proved and other co-accused who were acquitted in view of the
finding by the Ld. Trial Court they were separate in mess and
business from the Appellant.
13. The only question before us for consideration is
whether the conviction and sentence of the appellant under
Section 304(B), IPC and Section ¾, Dowry Prohibition Act is
sustainable in the eye of law.
14. In view of the submissions on behalf of the
Appellant, it would be relevant to point out at the outset itself that
there is no bar in law in examining family members or any other
persons as witnesses who are related to the deceased. In fact some
times, only family members are found to be witnesses to an
offence. Moreover, evidence of any family member cannot be
discarded only on account of his or her relationship with the
deceased. The evidence of such witnesses has to be weighed on
the touchstone of truth and, at most, a court is required to take
care and caution while appreciating their evidence. [Refer to
Abhishek Sharma Vs. State (NCT of Delhi), 2023 SCC OnLine
SC 1358; Yogesh Singh Vs. Mahabeer Singh & Ors, (2017) 11
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SCC 195; Mano Dutt and another Vs. State of Uttar Pradesh,
(2012) 4 SCC 79; State Vs. Saravanan, (AIR 2009 SC 152); State
of U.P. Vs. Kishanpal, (2008) 16 SCC 73; Namdeo Vs. State of
Maharashtra, (2007) 14 SCC 150; State of A.P. Vs. S. Rayappa,
(2006) 4 SCC 512; Pulicherla Nagaraju Vs. State of A.P., (2006)
11 SCC 444; Harbans Kaur Vs. State of Haryana, (2005) 9 SCC
195 and Hari Obula Reddy and Ors. Vs. The State of Andhra
Pradesh, (1981) 3 SCC 675]
15. As far as non-examination of independent
witnesses by the Prosecution is concerned, it is relevant to note
that the people in general are reluctant to be a witnesses in a
criminal case. One can not ignore this handicap with which
investigation agency has to discharge its duties. Moreover, the
prosecution is not bound to produce all the witnesses said to have
seen the occurrence. Material witnesses considered necessary by
the prosecution for unfolding the prosecution story alone need be
produced without unnecessary and redundant multiplication of
witnesses. [Refer to Appabhai & anr. Vs. State of Gujrat, AIR
1988 SC 696; Darya Singh Vs. State of Punjab, AIR 1965 SC
328; Yogesh Singh Vs. Mahabeer Singh & Ors, (2017) 11 SCC
195; Sheo Pujan Tiwari Vs. State of Bihar, 2016 (2) PCCR 187
and Dalip Singh Vs. State of Punjab, AIR 1953 SC 364].
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16. With regard to contradiction and discrepancies
in the prosecution witnesses, it is again relevant to point out
that it is a settled position of law that minor discrepancies on
trivial matters, not touching the core of the case, hyper-
technical approach by taking sentences torn out of context here
or there from the evidence, attaching importance to some
technical error committed by the Investigating Officer not
going to the root of the matter would not ordinarily permit
rejection of the evidence as a whole. In the deposition of
witnesses, there are always normal discrepancies, howsoever,
honest and truthful they may be. These discrepancies are due
to normal errors of observations, normal errors of memory due
to lapse of time, due to mental deposition, shock and horror at
the time of occurrence and threat to the life. Therefore, it is the
duty of the Court not to attach undue importance to minor
discrepancies unless they go to core of the matter and shake
the basic fabric of the prosecution case as the mental ability of
a human being cannot be expected to be attuned to absorb all
the details of the incident. Minor discrepancies are bound to
occur in statements of witnesses. In fact, minor discrepancies
in deposition are indication that the witnesses are not tutored
and they are truthful. In case of rustic witnesses coming from
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villages, court should not be oblivious of the fact that their
behavioral pattern and perceptive seems are not attuned to
sophisticated approaches familiar in courts. [Refer to C.
Muniappan & others Vs. State of T.N., (2010) 9 SCC 567;
State of U.P. Vs. Krishan Master, (AIR 2010 SC 3071);.
Appabhai & Anr. Vs. State of Gujrat, AIR 1988 SC 696;
Shivaji Sahebrao Bobade & Anr. Vs. State Of Maharashtra
(1973 AIR 2622); Sanjay Kumar Vs. State of Bihar; 2019 SCC
OnLine Pat 1077; State of Madhya Pradesh Vs. Dal Singh:
(2013) 14 SCC 159; Smt. Shamim Vs. State (GNCT of Delhi),
2018 (4) PLJR 160; S. Govidaarju Vs. State of Karnataka,
2013 (10) SCALE 454; Narotam Singh Vs. State Of Punjab &
Anr. (AIR 1978 SC 1542); Leela Ram Vs. State of Haryana,
(1999) 9 SCC 525; Subal Ghorai and Ors. Vs. State of West
Bengal, (2013) 4 SCC 607 and Yogesh Singh Vs Mahabeer
Singh & Ors., (2017) 11 SCC 195]
17. The submission of Ld. counsel for the Appellant
that in case of suicide, Section 304(B), IPC does not get attracted
is also without any substance in view of the settled position of
law. So far as Section 304(B), IPC is concerned, it is not relevant
whether it is a case of homicide or suicide. For application of
section 304(B), IPC, death of the women is required to be caused
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by any burns or bodily injury or occurs otherwise than under
normal circumstances. In other words, the death should be other
than natural death. And needless to say that suicide is not natural
death. Hence, the case of suicide is covered under the definition
of dowry death as defined by Section 304(B), IPC. In Raja Lal
Singh Vs. State of Jharkhand, (2007) 15 SCC 415, Hon'ble
Supreme Court has held that it is settled by a series of decisions
of this appellate Court that so far as Section 304(B), IPC is
concerned, it is not relevant whether it is a case of homicide or
suicide.
18. In Satvir Singh Vs. State of Punjab, (2001) 8
SCC 633, Hon'ble Supreme Court has held as follows:
"18. We are, therefore, unable to concur with the
contention that if the dowry-related death is a case of
suicide it would not fall within the purview of Section
304-B IPC at all. In Shanti v. State of Haryana, (1991) 1
SCC 371 and in Kans Raj v. State of Punjab (2000) 5
SCC 207 , this Court has held that suicide is one of the
modes of death falling within the ambit of Section 304-B
IPC."
19. In Kans Raj Vs. State of Punjab, (2000) 5 SCC
207, Hon'ble Supreme Court has held as follows:
"19. It is established that the death of Sunita Kumari
by suicide had occurred within 7 years of her marriage
and such death cannot be stated to have occurred in
normal circumstances. The term "normal circumstances"
apparently means natural death..................."
20. In other words the expression "otherwise than
under normal circumstances" would mean death not in the
usual course but apparently under suspicious
circumstances, if not caused by burns or bodily injury."
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20. In the case on hand, the victim had committed
suicide or met with homicide will be decided a little while
hereafter while considering the evidence on record. However,
even finding that the victim had committed suicide would not
alter finding regarding dowry death if other conditions required
under Section 304 (B), IPC are fulfilled by the prosecution
evidence.
21. Now we are required to consider the evidence on
record to decide the question involved in the case. However,
before considering the evidence on record, it is imperative to
consider the statutory provisions of Section 304(B) of the IPC and
Section 113B of the Evidence Act.
22. Section 304(B) of the IPC defines the offence of
Dowry Death. It reads as follows:-
"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 sub-section,
"dowry" shall have the same meaning as in Section 2 of
the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be
punished with imprisonment for a term which shall not be
less than seven years but which may extend to
imprisonment for life."
23. As such, the essential ingredients of dowry
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death are as follows, as held by Hon'ble Supreme Court in
Major Singh Vs. State of Punjab, (2015) 5 SCC 201.
"10. To sustain the conviction under Section 304-B
IPC, the following essential ingredients are to be
established:
(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 any relative of her husband;
(iv) such cruelty or harassment should be for or in
connection with demand of dowry; and
(v) such cruelty or harassment is shown to have been
meted out to the woman soon before her death."
24. The words "soon before her death" is, however,
not defined in the Act. Hence, in each case, the Court is required
to analyze the facts and circumstances of the case leading to the
death of the victim and decides if there is any proximate
connection between the demand of dowry and act of cruelty or
harassment and the death.
25. In Kans Raj Vs. State of Punjab, (2000) 5 SCC
207 Hon'ble Apex Court has held that the term "soon before"
is not synonymous with the term "immediately before".
However, it also doesn't mean that such time can be stretched to
any period. Proximate and live link between the effect of cruelty
based on dowry demand and the consequential death is required
to be proved by the prosecution. The demand of dowry, cruelty
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or harassment based upon such demand and the date of death
should not be too remote in time which, under the
circumstances, be treated as having become stale enough. The
relevant para of the Kans Raj Case (Supra) may be referred to
which is as follows:
"15........."Soon before" is a relative term which is
required to be considered under specific circumstances of
each case and no straitjacket formula can be laid down by
fixing any time-limit. This expression is pregnant with the
idea of proximity test. The term "soon before" is not
synonymous with the term "immediately before" and is
opposite of the expression "soon after" as used and
understood in Section 114, Illustration (a) of the Evidence
Act. These words would imply that the interval should not
be too long between the time of making the statement and
the death. It contemplates the reasonable time which, as
earlier noticed, has to be understood and determined under
the peculiar circumstances of each case. In relation to
dowry deaths, the circumstances showing the existence of
cruelty or harassment to the deceased are not restricted to
a particular instance but normally refer to a course of
conduct. Such conduct may be spread over a period of
time. If the cruelty or harassment or demand for dowry is
shown to have persisted, it shall be deemed to be "soon
before death" if any other intervening circumstance
showing the non-existence of such treatment is not
brought on record, before such alleged treatment and the
date of death. It does not, however, mean that such time
can be stretched to any period. Proximate and live link
between the effect of cruelty based on dowry demand and
the consequential death is required to be proved by the
prosecution. The demand of dowry, cruelty or harassment
based upon such demand and the date of death should not
be too remote in time which, under the circumstances, be
treated as having become stale enough."
(Emphasis supplied)
26. In Sher Singh Alias Partapa Vs. State of
Haryana, (2015) 3 SCC 724, Hon'ble Supreme Court has
also held that the word "soon" should not be interpreted in terms
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of days or months or years, but as necessarily indicating that the
demand for dowry should not be stale or an aberration of the
past, but should be the continuing cause for the death under
Section 304(B) or the suicide under Section 306 of the Indian
Penal Code.
27. Section 113B of the Indian Evidence Act is also
required to be taken note of while considering the prosecution
case under Section 304(B) of the Indian Penal Code to see
whether the prosecution case stands proved or not against the
Accused. Section 113B of the Indian Evidence Act provides for
presumption as to dowry death. It reads 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 had been subjected by such person
to cruelty or harassment for, or in connection with, any
demand for dowry, the Court shall presume that such
person had caused the dowry death.
Explanation.--For the purposes of this
section, "dowry death" shall have the same meaning as in
Section 304-B of Penal Code, 1860 (45 of 1860)"
28. As per the statutory provisions of Section 113B of
the Indian Evidence Act, it clearly emerges that when the Court
is considering the question whether the person has committed
the dowry death of a woman, he shall be presumed to have
caused the dowry death, if it is shown that before her death such
woman had been subjected by such person to cruelty or
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harassment in connection with any demand for dowry.
29. As such, for raising presumption under Section
113B of the Indian Evidence Act against the accused, the
Prosecution is required to prove the following two conditions:-
(i) Dowry Death of a woman in terms of Section
304(B), IPC has been committed.
(ii) The Accused has subjected the woman to cruelty
or harassment for or in connection with any demand of dowry
soon before her death.
30. The aforesaid two conditions being foundational
facts are required to be proved by the prosecution beyond
reasonable doubts for raising presumptions under section 113B
of the Indian Evidence Act. The presumption of innocence is
human right, subject to the statutory exceptions. The said
principle forms the basis of our criminal jurisprudence. Hence,
the foundational facts required for raising presumption, must be
proved by the prosecution beyond reasonable doubts.
Otherwise, the prosecution would only file a charge-sheet
against the accused claiming that the case of the prosecution
should be accepted as gospel truth, putting entire burden on the
accused to prove his innocence. Such proposition of law would
be certainly violative of the fundamental right of the Accused,
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as enshrined in our constitution. Hence, presumption can be
raised only when the foundational facts are established by the
prosecution by proof beyond reasonable doubts. Reliance is
placed on Babu Vs. State of Kerala, (2010) 9 SCC 189,
wherein Hon'ble Apex Court has observed as follows, in the
context of the POCSO Act:
"27. Every accused is presumed to be innocent
unless the guilt is proved. The presumption of innocence
is a human right. However, subject to the statutory
exceptions, the said principle forms the basis of criminal
jurisprudence. For this purpose, the nature of the offence,
its seriousness and gravity thereof has to be taken into
consideration. The courts must be on guard to see that
merely on the application of the presumption, the same
may not lead to any injustice or mistaken conviction.
Statutes like Negotiable Instruments Act, 1881; Prevention
of Corruption Act, 1988; and Terrorist and Disruptive
Activities (Prevention) Act, 1987, provide for presumption
of guilt if the circumstances provided in those Statutes are
found to be fulfilled and shift the burden of proof of
innocence on the accused. However, such a presumption
can also be raised only when certain foundational facts are
established by the prosecution. There may be difficulty in
proving a negative fact.
28. However, in cases where the statute does not
provide for the burden of proof on the accused, it always
lies on the prosecution. It is only in exceptional
circumstances, such as those of statutes as referred to
hereinabove, that the burden on proof is on the accused.
The statutory provision even for a presumption of guilt of
the accused under a particular statute must meet the tests
of reasonableness and liberty enshrined in Articles 14 and
21 of the Constitution. (Vide: Hiten P. Dalal Vs.
Bratindranath Banerjee, (2001) 6 SCC 16; Narendra Singh
Vs. State of M.P., (2004) 10 SCC 699, AIR 2004 SC 3249;
Rajesh Ranjan Yadav v. CBI, (2007) 1 SCC 70: AIR 2007
SC 451; Noor Aga Vs. State of Punjab, (2008) 16 SCC
417; and Krishna Janardhan Bhat Vs. Dattatraya G.
Hegde, (2008) 4 SCC 54: AIR 2008 SC 1325)."
(Emphasis supplied)
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31. The conjoint reading of Section 304(B), IPC and
Section 113B of the Indian Evidence Act shows that in case of
dowry death, the prosecution is relieved of its burden to prove
not only mens rea but even direct connection/involvement of the
accused with dowry death, if the ingredients of Section 304B,
IPC and the conditions as stipulated under Section 113 Evidence
Act are fulfilled. On account of this relaxation of standard of
proof, lesser punishment has been provided for dowry death
compared to murder. Hon'ble Supreme Court has clearly held
in Hem Chand Vs. State of Haryana, (1994) 6 SCC 727, that
irrespective of the fact whether accused has any direct
connection/involvement with the death or not, he shall be
presumed to have committed the dowry death if the prosecution
proves that death of women is dowry death and accused has
subjected such women to cruelty or harassment soon before her
death in connection with demand for dowry. The relevant para
of Hem Chand Case (supra) reads as follows:
"7. ............... Likewise there is a presumption
under Section 113-B of the Evidence Act as to the dowry
death. It lays down that the court shall presume that the
person who has subjected the deceased wife to cruelty
before her death caused the dowry death if it is shown that
before her death, such woman had been subjected, by the
accused, to cruelty or harassment in connection with any
demand for dowry. Practically this is the presumption that
has been incorporated in Section 304-B IPC also. It can
therefore be seen that irrespective of the fact whether the
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accused has any direct connection with the death or not,
he shall be presumed to have committed the dowry death
provided the other requirements mentioned above are
satisfied........"
(Emphasis supplied)
32. Similar view has been expressed by Hon'ble
Supreme Court in Sunil Dutt Sharma v. State (Govt. of NCT
of Delhi), (2014) 4 SCC 375. It reads as follows:
"15..........So long there is credible evidence of
cruelty occasioned by demand(s) for dowry, any unnatural
death of a woman within seven years of her marriage
makes the husband or a relative of the husband of such
woman liable for the offence of "dowry death" under
Section 304-B though there may not be any direct
involvement of the husband or such relative with the death
in question................"
(Emphasis supplied)
33. Now question is what would be the standard of
proof for the accused to rebut presumption raised under Section
113B of the Indian Evidence Act. Here, it may be pointed out
that presumption under Section 113B of the Indian Evidence Act
is presumption of law and mandatory in nature. The Section
carries the word "Court shall presume". As per Section 4 of the
Indian Evidence Act, under such presumption, the presumed fact
is required to be regarded as proved unless and until it is
disproved.
34. Hon'ble Supreme Court in Sher Singh Vs. State
of Haryana, (2015) 3 SCC 724 has held that it would not be
appropriate to lessen the husband's onus to rebut the
Patna High Court CR. APP (DB) No.554 of 2017 dt.28-06-2024
21/29
presumption to that of preponderance of probability and that
would annihilate the deemed guilt expressed in Section 304B
and such a curial interpretation would defeat and neutralize the
intentions and purposes of Parliament.
35. In Paranagouda v. State of Karnataka, 2023
SCC OnLine SC 1369, Hon'ble Supreme Court has reiterated
the view that the Accused is required to rebut the presumption
raised against him under Section 113B of the Indian Evidence
Act by proof beyond reasonable doubt.
36. Now question is whether the prosecution has
proved the aforesaid twin conditions to raise the presumption
under Section 113 B, Evidence Act against the Appellant as per
the evidence on record.
37. Coming to the prosecution evidence, we find that
the informant, Dinanath Sharma, who is father of the deceased,
has been examined as P.W.-4. In his examination-in-chief, he
has reiterated the allegation as made in the fardebayan. He has
also deposed that seizure list was prepared in his presence. In his
cross-examination, he has deposed that his daughter was well
treated at her matrimonial home for one year and thereafter, he
had brought his daughter at his home where she lived for 2-4
months and thereafter, she was taken back to the matrimonial
Patna High Court CR. APP (DB) No.554 of 2017 dt.28-06-2024
22/29
home by her husband and thereafter, she never came back.
38. P.W.-1, Munna Sharma (Brother of the
deceased), P.W.-2, Pawan Sharma (Brother of the deceased) and
P.W.-3, Gorakh Sharma (Uncle of the deceased) have also
deposed in support of the prosecution case, deposing that the
marriage of the deceased with the Appellant was solemnized
about three years back and there was demand of additional dowry
even after the marriage and on account of non-fulfillment of the
same, the deceased was subjected to harassment and torture. It
has also come on the record that the family members of the
deceased had visited the matrimonial home of the deceased on
20.04.2014for persuading the Accused persons for not beating the deceased and, on the next day i.e. on 21.04.2014, the informant came to know from P.W.-2, Pawan Sharma about the death of the deceased.
39. P.W.-6 is Dr. Jitendra Nath Singh, who had conducted postmortem examination on the dead body of the deceased. He has deposed in his examination-in-chief that the dead body of the deceased Jyoti Kumari @ Rina was brought to the Sadar Hospital, Bhabhua at 12:00 night and he being posted as a Medical Officer had conducted the postmortem examination on the dead body of the deceased on 22.04.2014. The finding as Patna High Court CR. APP (DB) No.554 of 2017 dt.28-06-2024 23/29 per the postmortem report is as follows:-
"External appearance- Rigor mortis present in all four limbs less in upper than lower limb. Neck loose. Chin can be flexed over front of chest. Eyes closed. Conjunctivared. Mouth closed tongue bitten between upper and lower teeth. Face deeply cyanosed.
2. External Examination-
A. Abrasion size 1/2"X1/4" transversly placed below chin b. An oblique ligature mark in upper part of neck with knet mark behind the left ear.
On dissection- skull bone intact Brain matter congested subcutaneous tissue under ligatare mark was dry and white trachea epiglotis and trachea was congested thorasic bony cage was intact both pleura and lung was congested and intact Pericardium and heart were intact and cougested Dark blood was present in both side of heart Liver, spleen both kidneys were intact and cougested Stomach was empty intestine small and large both contained gas liquid and foeces uterous was intact and non gravit urinary bladder was empty.
3. Opinion Above mentioned injuries were antemortem is nature and caused by hanging B. Death in my opinion was due to asphyxia caused by hanging C. Time elapsed between death and Autopsy is within 24 to 36 hours"
40. In his cross-examination, P.W.-6 has reiterated that the death of the deceased was due to asphyxia caused by hanging.
41. Even as per the inquest report, the death of the victim was caused by tying rope around her neck.
42. As per, P.W.-5, Shayamla Kumar (Investigating Officer) of this case, the place of occurrence is the house of the Accused and as per his deposition, there was ligature mark on the neck of the deceased. He also found chunri gamcha converted Patna High Court CR. APP (DB) No.554 of 2017 dt.28-06-2024 24/29 like a rope and one thin plastic rope of brown colour in the room of the deceased where she used to sleep. He has also deposed that when he reached the place of occurrence for verification, he met the father, uncle and brother of the deceased. He has also deposed that as per the case diary, the Accused persons were preparing for last rites and when the informant and his family members reached there, the Accused persons fled away. However, he has admitted that no witness has ever claimed that they have seen the occurrence.
43. As such, from the perusal of the evidence of the prosecution on record, we find that as per the evidence of Dr. Jitendra Nath Singh, P.W.-6, one Jyoti Kumari @ Rina (Wife of the Appellant), has died on 21.04.2014 at her matrimonial home on account of asphyxia caused by hanging.
44. We further find that the deceased, Jyoti Kumari was married with the Appellant three years back from the date of her death on 21.04.2014. It is also on record that there was demand of dowry by the Appellant and on account of non- fulfillment of the same, the deceased was subjected to beating by the Appellant. It is also on record that on 20.04.2014 i.e one day prior to the death of Jyoti Kumari, her family members had visited the matrimonial home to persuade the Appellant not to Patna High Court CR. APP (DB) No.554 of 2017 dt.28-06-2024 25/29 continue beating the deceased for non-fulfillment of his demand for dowry.
45. Coming to the Defence Evidence, we find that D.W.-1, Rambadhai Pandey, in his examination-in-chief, has deposed that he solemnizes marriages of people and the marriage between the deceased and the Appellant was solemnized by him in the year 2006. However, in his cross- examination, he has deposed that he does not remember the date of marriage, nor could he tell the shak samwat of the year 2006. He was also unable to tell the name of the father of the girl whose marriage was solemnized with the Appellant. Even the time of the marriage could not be stated by the witness. To Court question, he has deposed that he cannot tell a single mantra which is recited on the occasion of a marriage. This witness does not appear to be truthful and trustworthy in regard to his claim that he had solemnized the marriage of the Appellant with the deceased. He does not know even a single hymn which is recited on the occasion of solemnization of marriage.
46. D.W.-2, Radheshyam Sharma is a cousin brother of the Appellant. In his examination-in-chief he has deposed that the marriage of the Appellant with the deceased was Patna High Court CR. APP (DB) No.554 of 2017 dt.28-06-2024 26/29 solemnized in the year 2006. He has also deposed in his examination-in-chief that the deceased, Jyoti Kumari was suffering from arthritis and she was taking treatment for the same and on account of arthritis she hanged herself. In his cross-examination he has deposed that on halla, he visited the house of the Appellant and saw that the deceased Joyti Kumari was hanging with gamcha tied around her neck. He was also unable to tell the name of the day, date and month of the marriage of the Appellant with the deceased. He has denied the suggestion that he has deposed falsely and the marriage of the Appellant with the deceased was solemnized three years back from the date of death of Jyoti Kumari. This witness also does not appear to be trustworthy in regard to his claim about the year of the marriage between the Appellant and the deceased and the suicide of the deceased. In regard to marriage, he could not tell about the day, date and month of the marriage. Moreover, he himself stated in his cross-examination that when he reached the house of the Appellant, Jyoti Kumari was hanging and she was already dead. It means that he had witnessed the deceased committing suicide.
47. D.W.-3 - Vansh Narayan Sharma has deposed in his examination-in-chief that he knows the Appellant, Manu Patna High Court CR. APP (DB) No.554 of 2017 dt.28-06-2024 27/29 Sharma and he has worked with him for three months at Kavilaspur at the house of Kesnath Yadav. He has further deposed that on 21.04.2014 also, the Appellant was working with him. In his cross-examination he has deposed that the Appellant used to come at the working place from his home. He has further deposed that even on 22.04.2014 they were working together, but he did not tell him anything about the occurrence. Even the evidence of this witness is of no help to the Accused, because he has deposed that the Appellant used to come at the working place from his home. So the plea of alibi which has been tried to be proved by this witness could not be proved.
48. Hence, we find that as per the evidence on record the prosecution has proved the following facts beyond reasonable doubts-
(i) The deceased Jyoti Kumari met an unnatural death by asphyxia due to hanging;
(ii) The Marriage of the deceased with the Appellant was solemnized three years back from the date of occurrence;
(iii) There was demand of dowry by the Appellant and;
(iv) On account of non-fulfillment of the demand of dowry, the deceased was subjected to beating by the Appellant soon before her death.
Patna High Court CR. APP (DB) No.554 of 2017 dt.28-06-2024 28/29
49. Hence, the prosecution has proved beyond reasonable doubts that Jyoti Kumari @ Rina met with Dowry death and soon before her death she was subjected by the appellant to cruelty or harassment in connection with demand of dowry. As such, the foundational facts for raising presumption under Section 113B of the Indian Evidence Act stand proved by the prosecution to presume that the Appellant caused the dowry death of his wife Jyoti Kumari @ Rina. However, the Appellant has badly failed to rebut the presumption raised against him as required by law. Hence, the Appellant is found guilty under Section 304(B) of the IPC and Section ¾ of the Dowry Prohibition Act.
50. However, coming to the sentence awarded to the Appellant by learned Trial Court, we find that the Appellant has been sentenced to undergo life imprisonment under Section 304(B), IPC as per which the minimum sentence provided is seven years which may extend to imprisonment for life. But it has been held by Hon'ble Supreme Court in Hem Chand Case (Supra) that extreme punishment of life imprisonment under Section 304(B), IPC should be awarded only in rare cases. It is also settled principle of law that the Court is required to assign special reasons while awarding maximum sentence under any penal provisions. But in the case on hand, we do not find Patna High Court CR. APP (DB) No.554 of 2017 dt.28-06-2024 29/29 any special reasons assigned by Learned Trial Court while awarding maximum sentence to the Appellant. We find that in view of the facts and circumstances of the case, such punishment is excessive in view of the young age of the Appellant and the offence being his first one. Punishment for rigorous imprisonment for ten years under Section 304(B), IPC instead of life imprisonment would meet the ends of justice. The sentence is accordingly modified, upholding the punishment under Sections ¾ of Dowry Prohibition Act.
51. The Appeal is, accordingly, allowed in part, upholding the impugned judgment of conviction and modifying the impugned order of sentence. As per record, the Appellant has been in custody only since 01.09.2014.
(Jitendra Kumar, J.) I agree.
(Ashutosh Kumar, J.) shoaib/ Ravishankar/-
AFR/NAFR AFR CAV DATE 19.06.2024 Uploading Date 28.06.2024 Transmission Date 28.06.2024