Dhiraj Chouhan vs The State Of Bihar on 27 July, 2017

Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 1

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.698 of 2015
Arising Out of PS.Case No. -30 Year- 2013 Thana -SHAMBHUGANJ District- BANKA

1. Dhiraj Chouhan son of Anuplal Chouhan Resident of village- Kiranpur, P.S.-
Shambhuganj, District- Banka …. …. Appellant/s
Versus
1. The State of Bihar …. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Vikramdeo Singh, Advocate
Mr. Najmul Hoda, Advocate.

For the Respondent/s : Mr. Sujit Kumar Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 27-07-2017

Appellant Dhiraj Chouhan has been found guilty for

an offence punishable under Sections 304B/34 of the IPC and has

been directed to undergo RI for 10 years vide judgment of conviction

dated 28.09.2015 and order of sentence dated 30.09.2015 passed by

Additional Sessions Judge-4th, Banka in Sessions Trial No. 712 of

2013/52 of 2014/357 of 2015.

2. PW-8, Jamun Chouhan gave his Fard-e-beyan on

15.02.2013 at about 5.30. AM at Sasural of his daughter Bindo Devi

(Since deceased), in front of dead body of Bindo Devi alleging inter

alia that he married his daughter with Dhiraj Chouhan son of Anuplal

Chouhan as per Hindu rites and customs last year and at the time of

marriage, he had gifted dowry according to his means including

motorcycle. After staying at her Sasural, she returned back to her

place where she remained for some time and then thereafter on last
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 2

Dashahra occasion, his son-in-law Dhiraj Chouhan took away his

daughter to his place. Because of the fact that he was unable to

provide ear-ring which he had promised at the time of marriage on

account of financial crunch, his son-in-law, brother-in-law, father of

son-in-law, mother of son-in-law and Bhaujai of son-in-law began to

torture his daughter for procurement of aforesaid ear-ring. His

daughter used to inform him over mobile. He repeatedly requested his

son-in-law as well as Samadhi not to torture her but, they were

completely deaf over his request. Furthermore, it has also been

incorporated that they were insisting upon to the effect that ear-ring

should be provided to them in the same months. During aforesaid

skirmish, his son-in-law had informed his son Ram Kumar on

14.02.2013 at 3:00 PM that please come and see your sister otherwise

you would not be in a position to see her. His daughter had also

informed his son, Ram Kumar that her Sasuralwala are adamant to

kill. They are bent upon to throttle her. Then thereafter, the mobile

was switched off. On that very information, he along with his brother,

Jhupar Chouhan, nephew, Jitendra, son, Ram Kumar along with other

villagers rushed to Sasural of his daughter. After arrival, they saw

dead body of his daughter lying in the Angan. None of Sasuralwala

was present. So, it has been alleged by him that on account of non

fulfillment of demand of dowry, his daughter was murdered.
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 3

3. After registration of Shambhuganj PS Case No.

30/2013, investigation commenced and during course thereof, as

father-in-law, Anuplal Chouhan was apprehended on account thereof,

charge-sheet was submitted only against him keeping the

investigation pending against the other co-accused. Accordingly,

cognizance of offence was taken, the case was committed whereupon

Sessions Trial proceeded only against Anuplal Chouhan. During midst

thereof, as is evident, the appellant Dhiraj Chouhan was also

apprehended whereupon supplementary charge-sheet was submitted

against him identifying other accused to be absconder and so, the case

came up before the same court on commitment and even though, after

framing of charge, two witnesses have also been examined relating to

Anuplal Chouhan, the trial was allowed to amalgamate whereupon

charge was framed against both the accused afresh and in likewise

manner witnesses were also directed to be examined afresh abrogating

the earlier examination.

4. Defence case as is evident from mode of cross-

examination as well as statement recorded under Section 313 CrPC is

that of complete denial of the occurrence as alleged.

5. Furthermore, there happens to be specific plea at

the end of defence that victim was very much depressed as she was

not at all ready to accept appellant as her husband and so, she
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 4

committed suicide after consuming poison. To substantiate the same,

apart from Ext-A, certificate allegedly issued by the local Mukhiya,

one DWs have also been named.

6. In order to substantiate its case prosecution had

examined altogether eight witnesses out of whom PW-1, Parwati

Devi, PW-2, Lalit Mandal, PW-3, Kannu Mandal, PW-4, Ram

Kumar, PW-5, Shobha Devi, PW-6, Dr. Ejaz, PW-7, Santosh Kumar

and PW-8 Jamun Chouhan. Side by side had also exhibited Ext-1,

Fard-e-beyan,

7. As stated above defence had also examined DW-1,

Gajhadar Chauhan, DW-2, Nakul Mandal, DW-3, Magaru Mandal.

8. While challenging the judgment of conviction and

sentence impugned, the first and foremost argument having been

advanced on behalf of appellant is that while accepting the

submissions made on behalf of appellant that witnesses are unreliable

leading to acquittal for the charge under Section 302/34 IPC, should

have been accepted relating to 304B/34 IPC also relating to appellant,

same has been observed while acquitting the co-accused Anuplal

Chouhan, which has not been challenged on behalf of prosecution,

hence there was ample material available before the learned lower

court to discredit the allegation whereupon appellant is to be clean
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 5

acquitted. Furthermore, it has also been submitted that once the

evidence of witnesses have been found unreliable, uncreditworthy,

unacceptable relating to co-accused, then similar treatment should

have been allowed in favour of appellant also, as there was no special

circumstance is visualizing therefor, and to substantiate the same, it

has been submitted that for attracting conviction under Section

304B/34 IPC, there should be positive evidence over the demand of

dowry and for that, deceased was maltreated at the hand of appellant

soon before her death which should be within seven years of

marriage. In the present case, though, death has occurred within seven

years of marriage otherwise than normal circumstance or burnt injury,

whichever may be, the cause of death is not at all found substantiated

at the end of prosecution because of the absence of FSL report in the

background of the fact that the Doctor who conducted postmortem

report failed to divulge the cause of death. In likewise manner, it has

also been submitted that there happens to be paucity of the evidence

on the score of demand of dowry and in likewise manner, torture or

cruelty meted out to the deceased soon before her death.

9. In order to substantiate such plea, it has also been

submitted that accepting the allegation of the prosecution for

argument’s sake, not admitted that there was some sort of illegal

activity at the end of Sasuralwala including the appellant against the
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 6

deceased for procurement of golden ear-ring, then in that

circumstance, it was incumbent upon the prosecution party to have

rushed to the place of deceased to get the matter calm down failing

which would have reported the concerned officials or would have

convened a Panchayati at the social level to deprecate such action

which, the prosecution failed and that happens to be the sufficient

ground to discredit the version of the prosecution that the deceased

was subjected to cruelty or torture with regard to fulfillment of

demand of dowry that too only a golden ear-ring.

10. Furthermore, it has also been submitted that

exaggeration having in the evidence of the respective witnesses have

been duly perceived by the learned lower court and considering the

same, acquittal has been recorded relating to Section 302 of the IPC as

well as acquittal of co-accused relating to Section 304B/34 IPC and

so, the evidence of those witnesses would have out rightly been

rejected as unfit for even the present purpose being intermingled with

falsehood. Apart from this, it has also been urged that from the facts

and circumstances of the case, no offence under Section 306 IPC is

also made out apart from the fact that no charge under Section 306

IPC has been framed. That being so, the judgment of conviction and

sentence is fit to be set aside.

Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 7

11. Learned APP while refuting the submissions advanced

on behalf of appellant, has submitted that it is not the sound principle

of law to reject the evidence of the witnesses out rightly rather the

court has to find out truth from falsehood like separating the grain

from the chaff. Even if disbelieving part evidence of a witness,

remaining will be sufficient to attract conviction, and no impediment

is found over the same. Furthermore, it has also been submitted that

for the purpose of conviction relating to Section 304 B of the IPC,

there happens to be obligation on the part of the prosecution to prove

that death occurred within seven years of marriage, it was other than

normal circumstance, during intermediary period, there was demand

of dowry and for that, deceased was tortured soon before her death

and the aforesaid activities should be by the husband or relative of the

husband. From the evidence on the record it is evident that

prosecution had fulfilled the aforesaid criteria and on account thereof,

in terms of Section 113B of the Evidence Act, presumption though

rebuttable will be against an accused whereupon the accused is to

explain. So far, the case in hand is concerned, it is evident that the

appellant failed. Consequent thereupon, the judgment of conviction

and sentence is fit to be confirmed.

12. It has been settled at rest that falsus in uno falsus in

omnibus, is not at all applicable in the Indian social panorama. Side
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 8

by side, an obligation has been put over the shoulder of the court to

pick up truthfulness from the evidence separating the falsehood and

during such exercise, the court has to form an opinion on the basis of

the aforesaid evidence whether the guilt of the accused is found duly

exposed or not. If so, would record the conviction and if not would

acquit the appellant. It is also act of controversy that being family

members the evidence of witness could not be rejected unless it is

fond completely soaked with falsehood, improbability.

13. In the backdrop of settled proposition of law, now the

other aspect is to be seen which happens to be relating to the present

controversy over adjudication of applicability of Section 304 B of the

IPC and for that, certainly prosecution has got obligation to prove that

the death has occurred within seven years of marriage. There happens

to be death in abnormal circumstance. During intermediary period

there should be demand of dowry and for that, deceased was tortured

soon before her death and the same would have been at the end of the

husband or relative of the husband. It is also to be considered that the

Hon’ble Apex Court has further explained that nature of death should

not be classified as homicidal only rather if other ingredients are

fulfilled then in that event, it may be suicidal or accidental apart from

homicidal.

Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 9

14. Now coming to the facts of the case, it is apparent that

there happens to be no resistance at the end of the appellant over time

of marriage being one year. Death is also admitted. Although, cause

of death is not at all found in the postmortem report but, not only

defence admitted death rather on its own, suggested and further,

exhibited Ext-A as well as also examined DWs to say that deceased

died as she consumed poison due to depression from which she was

suffering on account of disliking of appellant as her husband.

Therefore, irrespective of the fact that cause of death has not been

disclosed by the doctor, the appellant being husband of the deceased

and further, deceased died while staying at her Sasural was fully

competent to explain the cause of death which he has discharged by

way of suggesting that she died of consumption of poison, be it

homicidal, suicidal as the case may be. So, death within seven years

of marriage, otherwise than normal circumstance is also found

properly substantiated.

15. Now remaining ingredients have to be seen. That

means to say, the demand of dowry, the torture soon before her death

by the husband as father-in-law had already been acquitted while

others are still absconding. To ascertain the aforesaid remaining

ingredients, first of all, Fard-e-beyan is to be taken into consideration

which happens to be Ext-1. In the Fard-e-beyan, it has specifically
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 10

been incorporated that for the ear-ring which they could not fulfill on

account of financial crunch, though was undertaken at their end at the

time of marriage to be provided was the reason for persistent demand

as well as torture having meted out to the deceased after Gauna and in

likewise manner, the conversation in between the appellant, deceased

with Ram Kumar (brother) whereupon, they all had proceeded and

found dead body of deceased in the Angan of her Sasural.

16. Informant is PW-8. During course of his evidence he

had stated that his son Ram Kumar had gone to effect Bidaee for his

daughter, Bindo which the accused persons were not allowing. They

were demanding ornaments, ear-ring. His son-in-law began to assault

his wife (deceased) whereupon, his son had informed that the

deceased is being assaulted. Ornament is being demanded by the

accused. Then thereafter, his wife had gone there who was also

assaulted. Thereafter, at 8 PM in the night on getting information from

his son, he had gone there and found the dead body of his daughter. It

has also been disclosed that accused persons chased him whereupon,

he reached at the police station and narrated the occurrence and then

thereafter returned back along with officer Incharge. He had given his

Fard-e-beyan at the place. Identified the accused. During course of

cross-examination at para-2, he had stated that his son-in-law was

very much liked by her daughter. There was no grievance on that very
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 11

score. They have also got no grievance but, as their son-in-law was

insisting upon with demand of ornaments so, they were aggrieved. He

had further stated that he is not remembering phone number through

which his son had informed. He had not shown the mobile set. In

para-3, he had stated that he met with police. Police had recorded his

Fard-e-beyan at the Sasural of his daughter. Fard-e-beyan was

recorded at 5:00 A.M.. At that very time, he was along with his

brother-in-law, brother, wife and others. Police remained there for an

hour. Then thereafter, there happens to be contradiction. In para-4, he

had stated that he had not informed the police with regard to demand.

His daughter had not sent letter to him. He had not convened

Panchayati over the demand. Accused persons had also instituted case

over his Bhagina, Bhatija and others. He has been suggested that the

accused persons have not committed any offence rather as the

deceased was not liking her husband, on account thereof, she

committed suicide by consuming poison. It has also been suggested

that at that very time none of the accused persons were present.

17. PW-1 is the co-villager of the appellant who had stated

that the spouse quarreled whereupon wife of Dhiraj consumed poison,

as a result of which, she died. During cross-examination, he had stated

that at that very time, Dhiraj was at Delhi. Dhiraj had not demanded

dowry either from his wife or from her family members. His wife was
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 12

mentally ill whereupon, she took suicidal steps thrice at an earlier

occasion.

18. PW-2 is also a co-villager who had stated that on

account of quarrel having amongst the spouse, she consumed poison,

as a result of which she died. During cross-examination he had stated

that no demand of dowry was ever made. The deceased possessed

weak mental condition.

19. PW-3 had deposed that the occurrence is about a year

ago which took place on account of demand of dowry. Dhiraj, Kapil,

wife of Kapil, Asma Devi and Anuplal Chouhan were demanding ear-

ring. As the same was not fulfilled, Bindo Devi was murdered by

them. During cross-examination he had stated that he happens to be

Phupha of deceased, Bindo. He had gone to the place of Dhiraj at the

time of Tilak. Since thereafter, he had not visited the place. Then had

stated that he met with Bindo at her Naihar about a year ago but talk

was over the issue. In para-3, he had stated that at the time of

marriage, Dhiraj was working at Delhi whereupon marriage was

solemnized. Bindo was residing at her Sasural. In para-4 ,he had

stated that no case was instituted with regard to ear-ring. This case has

been instituted by his Sala. Then there happens to be suggestion that

on account of insanity, Bindo had committed suicide by consuming
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 13

poison.

20. PW-4 is the brother of deceased who had stated that

the occurrence is about one year ago. At that very time, he was at the

place Bindo, he inquired from wife of Kapil regarding his brother-in-

law over which, Dhiraj came out from his house. On query, Dhiraj

said that he had not seen his sister. During midst thereof, he heard the

sound of his sister whereupon he went inside the house and found

mouth of this sister gagged. She was assaulted. He sister had said that

she cannot stand as has been assaulted. Her hand sustained fracture.

She further stated that she has been assaulted by Dhiraj, Kapil,

Anuplal, Asma. Then thereafter, he informed his parents after

escaping therefrom to the place of his Nani. His brother-in-law Dhiraj

had also informed at his house. His parents along with 2-4 persons

came to the place. He also came and then saw dead body of Bindo

lying over a cot. All the accused persons chased them. Thereafter, the

dead body was sent for postmortem. None of the family members

were present. They received death body and done the funeral.

Sasuralwala of his sister were demanding ear-ring as the same was not

fulfilled, so she was murdered. During cross-examination, he said that

he is unable to disclose the date on which he had gone to the place of

his sister but his sister died on the same day. He along with his parents

when came to the place of his sister, they had conversation with the
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 14

deceased. He had further stated that he had seen assault having over

the person of the deceased. He tried to save her. He had not raised

alarm. He had not gone to the police station. In para-3, he had further

stated that on the date of occurrence, he had not talked with the

accused persons. When he came along with his parents at the place of

deceased, none of the family members were present. They were

chased by the villagers as well as Gotia who have not been arrayed as

accused. In para-4, he had stated that his father had gone to P.S. He is

unable to say exact time when the police came. After arrival of the

police they took away the dead body for postmortem. In para-5, he

had stated that no case was instituted for dowry demand. Then there

happens to be contradiction. In para-7, he had denied the suggestion

that at an earlier occasion also, his sister had attempted to commit

suicide by consuming poison and for that, Panchayati was convened.

He also denied the suggestion that she was insane. He also denied the

suggestion that no demand of dowry was ever made nor she was ever

tortured or harassed on that very score.

21. PW-5 is the mother of the deceased who had deposed

that the occurrence his about a year ago. Her daughter Bindo Devi

was married with Dhiraj on account thereof, she was staying at her

Sasural. She had given motorcycle, cash but she could not be able to

give ear-ring whereupon, Dhiraj, Asma, Anuplal, Kapil and wife of
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 15

Kapil used to demand and, for that, Bindo was regularly assaulted.

Her son had inquired why they are assaulting his sister whereupon

they said that when they undertook to give ornament, the same be

given. Bhaisur of her daughter had scolded her son and further

directed to leave whereupon, her son returned back. Her son had

informed whereupon they had gone to the place of her daughter and

saw, accused persons were assaulting her daughter. They were also

chased. Then thereafter, the accused persons murdered her daughter.

During cross-examination at para-3, she had stated that she had gone

to the place of her daughter before marriage. She stayed there whole

night. Her husband, son had gone to inquire about the status of the

accused and after being satisfied, marriage was solemnized. She had

further stated that Dhiraj came to her place once or twice. Her family

members also used to visit that place. In para-4, she had stated that

she had visited the place of her daughter along with her husband after

4-5 months of marriage. In para-5, she had stated that she had not

lodged Sanha against the accused persons. She had not made

complaint before Mukhiya. She had not met with police Then had

stated that for the first time, she is deposing in the court. Again

corrected that her statement was recorded by the police at an earlier

occasion. Then there happens to be contradiction at para-6. She had

denied the suggestion at para-7, that her daughter committed suicide.
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 16

She also denied the suggestion that no demand of dowry was ever

made.

22. PW-7 is the I.O. He had deposed that on 15.02.2013,

he heard rumour that on account of non fulfillment of dowry a woman

has been murdered. Whereupon, they had gone to village, Kiranpur.

Chaoukidar guided them to the place of Anuplal where a dead body

was kept over a cot in his new house. He also came to know that

Kapil and Dhiraj who were residing in the said house fled away. They

had gone to his old house also and did not find Dhiraj, Anuplal, Kapil.

Parents of deceased came. Inquest report was prepared. Fard-e-beyan

of Jamun Chouhan was recorded . He was entrusted with the

investigation. During course thereof, he recorded further statement of

the informant. Also recorded statement of Ram Kumar, mother of

informant as well as others. Then inspected the place of occurrence

and detailed the same. Case was supervised and then, charge-sheet

was submitted against Anuplal. Subsequently thereof, supplementary

charge-sheet was also submitted against Dhiraj Kumar. During cross-

examination, at para-2, he had stated that he was taken away by the

Choukidar whose name he is not remembering. He had not put

signature over the Fard-e-beyan of Jamun Chouhan as well as inquest

report. He has got personal knowledge with regard thereto. Because of

the fact that the persons of the boundary had not come to made
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 17

statement on account thereof, they were not examined. The persons

who were present at the place of occurrence were examined. He had

not found any objectionable item from the P.O. He is not

remembering whether any injury was over the person of deceased. In

para-4, he had stated that he was not informed regarding accused

persons by the villagers. Then he denied the suggestion that his

investigation was collusive one.

23. PW-6 is the doctor who had conducted postmortem

over the death body of the deceased on 15.02.2013 and found the

following ante-mortem injuries.

1. Multiple nail bite on both cheek.

2. Multiple elongated bruise on both lower leg.

3. Bruise 2″ x ½” on left thigh.

4. Bruise 6″ x 4″ on back (right side)

24. On dissection blood clot 2″ x 1″ over spternum.

Stomach, digested food, hamaecuna congested.

25. Opinion reserved till information comes from FSL.

Time elapsed is 18-22 hours.

26. During cross-examination, it is evident that he had

stated that he had not mentioned the colour of any injury. Nature of

injury was simple. Blood clot usually occurs due to injury.
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 18

27. Defence had also examined witnesses out of whom

DW-1, Gajadhar Chouhan who had deposed that occurrence is about

two years ago. House of accused Anuplal lies after five houses. He

used to visit the place of accused. Daughter-in-law of Anuplal used to

say him that she does not like her husband. If her father did not take

her away, then in that circumstance, she will commit suicide. There

was good relationship amongst the son, daughter-in-law of Anuplal.

Accused persons were keeping deceased in good, congenial

atmosphere. Accused persons never demanded anything from the

family of the deceased. His wife had also died on the same day.

Anuplal had participated in her funeral procession to Sultanganj.

Elder son of Anuplal had gone to his Sasural along with his wife 4-5

days prior to the occurrence. Dhiraj had gone to graze his she-buffalo.

He came back at 10.00 PM, then he came to know that wife of Dhiraj

died after consuming poison. During cross-examination, he had

admitted that family members of Dhiraj used to consult him before

initiation of any work. He had got no personal information regarding

demand of dowry. He had further stated that he came to deposed at the

request of Anuplal. He further stated that whatever Anuplal had

instructed him, he had stated. When this DW had gone in funeral of

his wife, then deposing over absence of Dhiraj at the time of

occurrence is a circumstance which cast doubt over his conduct.
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 19

28. DW-2, is Nakul Mandal who had deposed that he knew

the accused persons with whom, he was on visiting term. He had seen

the wife of Dhiraj but he had not talked to her. There was good

relation in between the spouses. He had received complaint against

the deceased that she was not liking her husband. She would not stay

there. On the day of occurrence, he was grazing she-buffalo. Anuplal

had gone to attend funeral procession of wife of Rajiv Beldar. Kapil

had gone outside for earning his livelihood. His wife was at her

Maika. Dhiraj was grazing she-buffalo. He came to know that wife of

Dhiraj died at her house. Anuplal came in the night. He had heard that

wife of Dhiraj consumed poison. She had consumed poison at an

earlier occasion also. During cross-examination he had stated that he

had come to depose at the instant of Anuplal.

29. DW-3, Mangru Mandal had stated that the occurrence

is about more than 2 years. He knew Anuplal and his family members.

His house lies 200 yards away from Anuplal. He occasionally visited

his house. He had got no friendship with him. On the day of

occurrence, Anuplal had gone in funeral procession of wife of Rajiv

Beldar. He returned back at 6.30 P.M.. His elder son was at Delhi. His

wife was at her Maika. Dhiraj was with him with his she-buffalo.

None was present at their house. Only wife of Dhiraj was there. She

died after consuming poison as Dhiraj was not liked by her. She was
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 20

also not satisfied with Dhiraj. During cross-examination, he had stated

that he came to depose at his own.

30. A certificate addressed “to whom it may concerned”,

has been marked as Ext-A containing signature of Shankar Bhagat,

one Mukhiya as well as nine persons. How it has been exhibited is a

matter of concerned because of the fact that none of the DWs as

referred above had exhibited the same, nor it happens to be a public

document. Therefore, this document happens to be legally not

admissible in the eye of law.

31. The accused persons during their statement recorded

under Section 313 CrPC were confronted with the incriminating

article and so far appellant, Dhiraj is concerned, questionnaire so

formulated reads as follows:-

Q. Aapke virudha aarop evam sakchhya hai ki aap
dinank 14 February 2013 ko din ke 3.00 baje, Gram-
Kiranpur, Thana-Shambhuganj, Jila-Banka mein aapne
ghar par waadi ki putri Bindu Devi ko dahej ke liye hatya
kar diye. Kya kahna hai?

Ans. Ji Nahi, Galat Hai.
Q. Safai mein aapko kya kahna hai?
Ans. Gawahi denge.

32. From the evidence available on the record, it is

apparent that death of Bindu Devi is out of controversy. Though PW-

6 had not stated the cause of death, at the other end, viscera was sent

to the FSL but, for want of report at the end of FSL, cause is still
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 21

awaiting. On the other hand, there happens to be consistent defence

version that she died of poison, which she consumed under suicidal

event. However, ante-mortem injuries have been found over the dead

body during course of postmortem and apparently appellant has not

been able to explain the same either by way of cross-examining PW-6

or through DWs, who have been examined on his behalf nay during

course of statement recorded under Section 313 CrPC. Apart from

this, it is needless to say that the deceased died while she was staying

at her Sasural under the guardianship of appellant who happens to be

her husband and so the activity having taken place inside the house

was to be explained at his end under Section 106 of the Evidence Act.

That happens to be the circumstance which could be taken into

consideration during course of appreciation of remaining evidence. So

far evidence of PWs 4 and 5 are concerned, they happen to be mother

as well as brother of deceased and from their evidences, it is evident

that they have had developed their initial version and on that very

score, their attention has been drawn up but surprisingly, while cross-

examining PW-7, I.O. his attention has not been drawn up to that

extent. Therefore, that has gone worthless.

33. Be that as it may, PW-8, informant was very much

consistent with regard to demand of ear-ring and for that, the torture

and cruelty having at the end of accused persons and on that very
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 22

score, his evidence has not been properly tested save and except that

for that purpose no legal prosecution has been drawn up at his end at

an earlier occasion. This theme is also to be taken into consideration

in the background of the fact that deceased was married last year only

and so, span of time since after marriage could really provoke them to

that extent that by such activity they could transform the relationship

to be gutted down or should wait for getting the matter calm down.

Furthermore, PWs-4 and 5 though had exaggerated their versions

misutilized by appellant himself by not drawing attention to the I.O.,

PW-7 but again, the demand happens to be there and on that very

score, again both the witnesses have not been properly cross-

examined. However, the manner whereunder they presented

themselves cast suspicion over veracity of their evidence relating to

demand and torture though some slackness is at the end of appellant

while cross-examining them.

34. Now coming to the evidence of remaining witnesses, it

is apparent that the co-villagers of appellant being PW-1 as well as

PW-2 and in likewise manner all the DWs have stated that there was

cordial relation but, the deceased was not liking her husband and on

account thereof, she was threatening that if she is not cared by her

family members, she will consume poison, gone unheeded as none of

the witnesses had ever stated that her Naiherwala was informed by the
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 23

accused persons on that very pretext, they were called upon on to get

the matter properly sorted out.

35. Considering overall situation, evidence available on

the record, it is evident that though on the basis of demand of dowry

followed with torture happens to be shaky one but, the activity of the

appellant is found exposed from the postmortem report which, the

appellant failed to explain and so, being a husband even accepting the

defence version that the deceased might have had consumed

poisonous substance in a way to suicide, happens to be on account of

physical torture at the end of appellant on account of presence of non-

explained ante-mortem injuries and so, the appellant could be held

guilty for an offence punishable under Section 306 IPC.

36. During course of statement of accused under Section

313 CrPC, it is evident that appellant had made evasive reply. The

purpose for recording statement of accused is to have proper reply

with regard to the incriminating material having at the end of

prosecution during course of conduction of trial. This obligation is

found much more meaningful when an occurrence took place inside

the house within the exclusive knowledge of the accused. Therefore,

when deceased died at the house and even at his end, it has been

admitted by way of examination of three DWs that she died of
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 24

consuming poison in order to commit suicide then in that

circumstance, it was incumbent upon him to have properly explained,

at least regarding the eventuality coupled with proper explanation as

required under Section 113 of the Evidence Act. The aforesaid event

has been taken into consideration in the case of Ashok Kumar v. State

of Haryana as reported in (2010) 12 SCC 350 which is as follows:-

“29. Now we may proceed to discuss the evidence led by
the prosecution in the present case. In order to bring the
issues raised within a narrow compass we may refer to
the statement of the accused made under Section 313,
Cr.PC. It is a settled principle of law that dual purpose is
sought to be achieved when the Courts comply with the
mandatory requirement of recording the statement of an
accused under this provision. Firstly, every material
piece of evidence which the prosecution proposes to use
against the accused should be put to him in clear terms
and secondly, the accused should have a fair chance to
give his explanation in relation to that evidence as well as
his own versions with regard to alleged involvement in
the crime. This dual purpose has to be achieved in the
interest of the proper administration of criminal justice
and in accordance with the provisions of the Cr.P.C.
Furthermore, the statement under Section 313 of the
Cr.PC can be used by the Court in so far as it
corroborates the case of the prosecution. Of course,
conviction per se cannot be based upon the statement
under Section 313 of the Cr.PC.

Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 25

30. Let us examine the essential features of this section
and the principles of law as enunciated by judgments of
this Court, which are the guiding factor for proper
application and consequences which shall flow from the
provisions of Section 313 of the Cr.PC. As already
noticed, the object of recording the statement of the
accused under Section 313 of the Cr.PC is to put all
incriminating evidence to the accused so as to provide
him an opportunity to explain such incriminating
circumstances appearing against him in the evidence of
the prosecution. At the same time, also permit him to put
forward his own version or reasons, if he so chooses, in
relation to his involvement or otherwise in the crime.

31. The Court has been empowered to examine the
accused but only after the prosecution evidence has been
concluded. It is a mandatory obligation upon the Court
and besides ensuring the compliance thereof, the Court
has to keep in mind that the accused gets a fair chance to
explain his conduct. The option lies with the accused to
maintain silence coupled with simplicitor denial or, in
the alternative, to explain his version and reasons, for his
alleged involvement in the commission of crime. This is
the statement which the accused makes without fear or
right of the other party to cross-examine him. However,
if the statements made are false, the Court is entitled to
draw adverse inferences and pass consequential orders,
as may be called for, in accordance with law. The
primary purpose is to establish a direct dialogue between
the Court and the accused and to put every important
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 26

incriminating piece of evidence to the accused and grant
him an opportunity to answer and explain. Once such a
statement is recorded, the next question that has to be
considered by the Court is to what extent and
consequences such statement can be used during the
enquiry and the trial. Over the period of time, the Courts
have explained this concept and now it has attained, more
or less, certainty in the field of criminal jurisprudence.

32. The statement of the accused can be used to test the
veracity of the exculpatory of the admission, if any, made
by the accused. It can be taken into consideration in any,
enquiry or trial but still it is not strictly an evidence in the
case. The provisions of Section 313 (4) of the Cr.PC
explicitly provides that the answers given by the accused
may be taken into consideration in such enquiry or trial
and put in as evidence for or against the accused in any
other enquiry or trial for any other offence for which,
such answers may tend to show he has committed. In
other words, the use of a statement under Section 313 of
Cr.PC as an evidence is permissible as per the provisions
of the Code but has its own limitations. The Courts may
rely on a portion of the statement of the accused and find
him guilty in consideration of the other evidence against
him led by the prosecution, however, such statements
made under this Section should not be considered in
isolation but in conjunction with evidence adduced by the
prosecution.

33. Another important caution that Courts have declared
in the pronouncements is that conviction of the accused
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 27

cannot be based merely on the statement made under
Section 313 of the Cr.PC as it cannot be regarded as a
substantive piece of evidence. In the case of Vijendrajit
Ayodhya Prasad Goel v. State of Bombay [AIR 1953 SC
247], the Court held as under:

“3. ……….As the appellant admitted that he was in charge
of the godown, further evidence was not led on the point.
The Magistrate was in this situation fully justified in
referring to the statement of the accused under Section
342 as supporting the prosecution case concerning the
possession of the godown. The contention that the
Magistrate made use of the inculpatory part of the
accused’s statement and excluded the exculpatory part
does not seem to be correct. The statement under Section
342 did not consist of two portions, part inculpatory and
part exculpatory. It concerned itself with two facts. The
accused admitted that he was in charge of the godown, he
denied that the rectified spirit was found in that godown.
He alleged that the rectified spirit was found outside it.
This part of his statement was proved untrue by the
prosecution evidence and had no intimate connection
with the statement concerning the possession of the
godown.”

34. From various answers given by the accused to the
Court in his statement recorded under Section 313 of the
Cr.P.C., it appears that the death of the deceased is not
disputed. The allegation with regard to cruelty was
denied. However, besides denying the case of the
prosecution, the appellant took the stand that he was
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 28

falsely implicated in the crime. According to him, the
deceased was not happy with the marriage inasmuch as
she was in love with some other boy and wanted to marry
him which was not permitted by her family and that is
why she committed suicide. As would be evident from
this admitted position, the death of the deceased by
burning is not an issue. The limited question was whether
the deceased committed suicide simplicitor for the
reasons given by the accused or in the alternative, the
prosecution story, that it was a dowry death relatable to
the harassment and cruelty inflicted upon her by the
accused and his family members, is correct.”

37. Now the question arose whether in absence of framing

of charge under Section 306 of the IPC, accused could be convicted

and the same has been properly answered in Ramesh Vithal Patil v.

State of Karnataka as reported in (2014) 11 SCC 516

“18. It is true that the appellant was not charged under
Section 306 of the IPC. The charge was under Section 304-
B of the IPC. It was, however, perfectly legal for the High
Court to convict him for offence punishable under Section
306 of the IPC. In this connection, we may usefully refer to
Narwinder Singh. In that case the accused was charged
under Section 304-B of the IPC. The death had occurred
within seven years of the marriage. The trial court
convicted the accused for an offence punishable under
Section 304-B of the IPC. Upon reconsideration of the
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 29

entire evidence, the High Court came to the conclusion that
the deceased had not committed suicide on account of
demand for dowry, but, due to harassment caused by the
husband in particular. The High Court acquitted the parents
of the accused and converted the conviction of the accused
from one under Section 304-B of the IPC to Section 306 of
the IPC. This Court dismissed the appeal filed by the
accused. It was observed that it is a settled proposition of
law that mere omission or defect in framing charge would
not disable the court from convicting the accused for the
offence which has been found to be proved on the basis of
the evidence on record. In such circumstances, the matter
would fall within the purview of Sections 221(1) and (2) of
the Code of Criminal Procedure, 1973.

19. The relevant observations of this Court could be
quoted:

“21. The High Court upon meticulous scrutiny of the entire
evidence on record rightly concluded that there was no
evidence to indicate the commission of offence under
Section 304-B IPC. It was also observed that the deceased
had committed suicide due to harassment meted out to her
by the appellant but there was no evidence on record to
suggest that such harassment or cruelty was made in
connection to any dowry demands. Thus, cruelty or
harassment sans any dowry demands which drives the wife
to commit suicide attracts the offence of “abetment of
suicide” under Section 306 IPC and not Section 304-B IPC
which defines the offence and punishment for “dowry
death”.”

Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 30

20. Moreover, admittedly the deceased committed suicide
within a period of seven years from the date of her
marriage. Section 113-A of the Evidence Act is, therefore,
clearly attracted to this case. Presumption contemplated
therein must spring in action. This provision was
introduced by Criminal Law Second Amendment Act,
1983 to resolve the difficulty of proof where married
women are forced to commit suicide but incriminating
evidence is difficult to get as it is usually available within
the four walls of the matrimonial home. Section 113-A
reads as under:

“113A- Presumption as to abetment of suicide by a married
woman.- When the question is whether the commission of
suicide by a woman had been abetted by her husband or
any relative of her husband and it is shown that she had
committed suicide within a period of seven years from the
date of her marriage and that her husband or such relative
of her husband had subjected her to cruelty, the court may
presume, having regard to all the other circumstances of
the case, that such suicide had been abetted by her husband
or by such relative of her husband.

Explanation.– For the purposes of this section, “cruelty”
shall have the same meaning as in section 498A of the
Indian Penal Code (45 of 1860 ).” In this case the
prosecution has led evidence to establish cruelty or
harassment caused to the deceased, which is rightly taken
into account by the High Court. Thus, the foundation for
the presumption exists. The appellant, however, has led no
evidence to rebut the presumption. Therefore, it can be
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 31

safely concluded in the facts of this case that the appellant
abetted the suicide of the deceased.

21. There is also another angle to this case. The
prosecution has succeeded in proving facts from which a
reasonable inference can be drawn that the deceased
committed suicide by jumping in the river along with her
daughter. The deceased was in the custody of the appellant.
She left the appellant’s house with the small child.
Admittedly, neither the appellant nor any member of his
family lodged any missing complaint. The appellant
straightway went to the house of the deceased to enquire
about her. This conduct is strange. When his wife and
small child had left the house and were not traceable the
appellant was expected to move heaven and earth to trace
them. As to when and why the deceased left the house and
how she died in suspicious circumstances was within the
special knowledge of the appellant. When the prosecution
established facts from which reasonable inference can be
drawn that the deceased committed suicide, the appellant
should have, by virtue of his special knowledge regarding
those facts, offered an explanation which might drive the
court to draw a different inference. The burden of proving
those facts was on the appellant as per Section 106 of the
Evidence Act but the appellant has not discharged the same
leading to an adverse inference being drawn against him
(See: Tulshiram Sahadu Suryawanshi Anr. v. State of
Maharashtra[(2012) 10 SCC 373] and Babu alias
Balasubramaniam [(2013) 8 SCC 60)].

38. That being so, the conviction of the appellant recorded
Patna High Court CR. APP (SJ) No.698 of 2015 dt.27-07-2017 32

by the learned lower court under Section 304B of the IPC is allowed

as well as modified and is held guilty for an offence punishable under

Section 306 IPC and in likewise manner the sentence having been

inflicted by the learned lower court, RI for 10 years is reduced to RI

for 7 years. With the aforesaid modification, the appeal is dismissed.

39. Appellant is on bail, hence his bail bond is hereby,

cancelled directing him to surrender before the learned lower court to

serve out the remaining part of sentence failing which the learned

lower court will be at liberty to take proper legal recourse to procure

his attendance.

(Aditya Kumar Trivedi, J)

perwez

AFR/NAFR AFR
CAV DATE N/A
Uploading Date 01.08.2017
Transmission 01.08.2017
Date

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