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Phul Kumari Devi & Anr vs The State Of Bihar on 10 May, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.358 of 2015
Arising Out of PS.Case No. -100 Year- 2005 Thana -BIKRAM District- PATNA

1. Phul Kumari Devi Wife of Hazari Yadav

2. Hazari Yadav Son of Ram Chandra Yadav Both residents of Village –
Dharampur Kharwa, P.S. – Dulhin Bazar, District – Patna.

… …. Appellant/s
Versus

1. The State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Ramakant Sharma, Sr. Advocate
Mr. Rajesh Kumar, Advocate
Mr. Arun Kumar Pandey, Advocate
For the Respondent/s : Mr. Abhay Kumar, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 10-05-2018

Appellants Phul Kumari Devi, Hazari Yadav have been

found guilty for an offence punishable under Section 304B I.P.C and

appellant Hazari Yadav has been sentenced to undergo S.I for 10

years while appellant Phul Kumari Devi has been sentenced to

undergo S.I for 7 years, under Section 498A of the I.P.C whereunder

both the appellants have been sentenced to undergo S.I for 3 years as

well as to pay fine appertaining to Rs. 10,000 in default thereof, to

undergo S.I for three months additionally, with a further direction to

run the sentences concurrently vide judgment of conviction and

sentence dated 26.05.2015 passed by Additional District and Sessions

Judge-IV, Danapur, Patna in Sessions trial no. 1566 of 2005.

2. Informant, Lal Bahadur Yadav (PW-7) gave his

fard-beyan on 06.04.2005 at about 4 P.M before the O/C, Dulhin
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 2

Bazar P.S divulging the fact that his daughter Shobha Devi was

married with Yogendra Yadav, son of Ram Chandra Yadav of village

Dharampur Kharwa P.S- Dulhinbazar in the month of May, 2003 and,

had gone to her sasural where she was staying. She visited his place

occasionally. Whenever she came to his place, she disclosed that her

Bhaisur Hazari Yadav, hushand Yogendra Yadav and wife of Hazari

Yadav were torturing her for procurement of a Television. For the last

10 months, she was staying at his place in the aforesaid background.

About five days prior to Holi, Hazari Yadav came and took Rukhsati

of his daughter. At that very time also, he had insisted upon T.V,

whereupon he disclosed that on account of financial constraint he is

not able to give the same at the present moment. As soon as he is out

of, will provide the same. Today, i.e. on 06.04.2005 at about 2 P.M

he received an information with regard to commission of murder of

his daughter as well as concealment of her dead body whereupon, he

along with others rushed to the sasural of his daughter where none

was present. His daughter was also not present. On query, he came to

know that after causing her death, her sasuralwala concealed her dead

body in order to screen themselves.

3. After registration of Bikram (Dulhin Bazar) P.S

Case No. 100/2005, investigation taken up, and during course thereof,

dead body was traced out, recovered from a Septic Latrine tank, sent
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 3

to mortuary for postmortem, received the P.M. report as well as after

examination of the witnesses finding the case true, both the appellants

were charge-sheeted keeping investigation against the husband

pending as remained absconder, consequent thereupon, faced the trial

meeting with the ultimate result, subject matter of instant appeal.

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

examination as well as statement recorded under Section 313 of the

Cr.P.C is that of complete denial. It has also been pleaded that

appellants happen to be separate in mess and business from the family

of the deceased and her husband, Yogendra Yadav and that being so,

they could not be arrayed nor could be identified to be responsible for

causing dowry death of the deceased. However, neither oral nor

documentary evidence has been adduced in defence.

5. In order to substantiate its case, prosecution had

examined altogether 9 PWs, who are PW-1, Bhagnarayan Yadav,

PW-2, Indar Yadav, PW-3, Satyendra Kumar, PW-4, Raj Nath Prasad,

PW-5, Kumar Jeet Kumar, PW-6, Amarjeet Kumar, PW-7, Lal

Bahadur Yadav, PW-8, Kapur Nath Sharma and PW-9, Ashok Kumar.

Side by side had also exhibited Ext.1, signature of Bhagnarayan

Yadav over fard-beyan, Ext.1/1, signature of informant Lal Bahadur

over fard-beyan, Ext.2, fardbeyan, Ext.3, formal F.I.R, Ext.4, inquest

report, Ext.5, letter no. 677 dated 24.06.2014, Ext.4/A attested carbon
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 4

copy of inquest report, Ext.5/A letter no.363 dated 25.04.2015, Ext.6,

carbon copy of post mortem report and, Ext.7, photocopy of dead

body challan. As stated above, defence had not adduced oral as well

as documentary evidence.

6. While assailing the judgment of conviction and

sentence, the learned senior counsel for the appellant had bifurcated

the case of the appellants in two parts. With regard to appellant,

Hazari Yadav, it has been submitted that he virtually saturated the

period of sentence on account of being under custody from 01.2.2006

to 07.7.2015. He had been sentenced under section 304B of the I.P.C

for 10 years while under Section 498A of the I.P.C for three years,

with a further direction to run the both the sentences concurrently

therefore, the result of appeal is not going to give any kind of impact

against him, so he is not emphatically pressing his plea relating to

him.

7. While arguing the case on behalf of appellant no.1,

Phul Kumari Devi, who happens to be the wife of appellant Hazari

Yadav, the learned counsel for the appellant strenuously argued on

each and every aspect coupled with over emotional plank. The first

and foremost argument happens to be that she happens to be mother

of six children and during course of trial, remained under custody, and

so, there should be sympathetic approach in the background of the
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 5

fact that (a) she happens to be Gotni of the deceased (b) There

happens to be absence of specific positive evidence against her over

demand as well as torture having been inflicted at her end. So, even if

case is found duly substantiated then maintaining the conviction,

sentence be modified as period already undergone.

8. Then coming over merit of the case, it has been

submitted that from bare perusal of the L.C record, it is apparent that

prosecution has miserably failed to substantiate its case in the

background of the fact:

(1) There happens to be no conclusive

evidence of jointness.

(2) There happens to be no detail with

regard to activity having at the end of

the appellant over demand as well as

torture.

(3) No incriminating material has been

confronted to her during course of

her statement recorded under

Section 313 of the Cr.P.C.

9. Though there happens to be negligence at their end

during conduction of trial before learned lower court, whereunder

majority of the witnesses were not at all cross-examined but, that was
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 6

on account of financial crunch which they are facing and in spite of

ample material to discredit the version of the prosecution, their

poverty restrained them to contest the case and further out of

ignorance they could not get learned counsel at the end of the state

and in likewise manner, the court was also not so sensitized on that

very score, therefore prosecution became illegal, trial vitiated, hence

she be acquitted.

10. Learned counsel for the appellant also relied upon

(2014) 10 SCC 270[ Sukhjit Singh v. State of Punjab] (2007) 12 SCC

341 [Ajay Singh v. State of Maharashtra], (2016) 12 SCC 331[State of

Karnataka v. Dattaraj Ors.], 1951 AIR SC 441[ Tara Singh v. The

State], 1953 AIR SC 468 [Hate Singh Bhagat Singh v. State of

Madhya Bharat] , (1972) 3 SCC 869 [ State of Punjab v. Tarlok

Singh], AIR 1976 SC 2423 [Ishwar Singh v. State of U.P.

11. Learned Additional P.P while refuting the

submissions made on behalf of learned senior counsel for the

appellants has submitted that material witnesses were not at all cross-

examined at the end of the appellants whereupon, they were

discharged. So, their testimony remained intact. That means to say,

nothing adverse has been found over reliability of their evidences,

whereupon, considering the evidence, the case of the prosecution is

found duly substantiated.

Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 7

12. From the L.C record, it is evident that PW-1 was

cross-examined while PW-2 was declared hostile. PW-3, PW-4 and

PW-5 have not been cross-examined and so, they were discharged and

that happens to be with regard to status of PW-7, the informant. PW-

6, who happens to be one of the sons of informant was cross-

examined and in likewise manner, PW-8, I.O. PW-9 is the peon of

the Health Department posted at Sub Divisional Hospital, Danapur

and he was also duly cross-examined, though happens to be formal in

nature.

13. First of all, evidence of those witnesses are being

taken who have not been cross-examined.

14. PW-3 had stated that he knew Shobha Devi. In the

year 2005, while he was in the market there was rumour with regard

to commission of murder of Shobha Devi whereupon he had gone to

sasural of Shobha Devi where she was not present. Police came

subsequently. Gone in search of dead body and during course thereof,

recovered the dead body from the septic latrine tank of one Indal

Yadav, he had also stated that Shobha Devi was being tortured for

procurement of T.V. Claimed identification of father-in-law, husband

of Shobha Devi. PW-4 had stated that Shobha Devi was married with

Yogendra Yadav. She is dead. Her dead body was recovered from a

septic tank and for that, paper was prepared over which he had put his
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 8

signature.

15. PW-5, is one of the sons of informant, who had

deposed that deceased Shobha Devi was his sister who was married

with Yogendra Yadav about five years ago. After marriage his sister

used to remain at her sasural where dowry in lieu of T.V was

advanced and for that she was being tortured. As TV was not

provided, his sister was ever been physically assaulted. Then had

stated that he had gone to sasural of his sister where he found Hazari

Yadav and Fhul Kumari. She asked from him whether, he has brought

T.V. He stated that he wants to meet with his sister whereupon, she

disclosed that she had gone to Paliganj along with her husband for

treatment. Then thereafter, he returned back. Later on they came to

know that his sister has been murdered. His father was informed

whereupon his father along with villagers has gone to the sasural of

his sister but, failed to trace her out. Then thereafter, P.S was

informed. During course of search police had recovered the dead body

of his sister from the septic tank. Then had said that his sister was

murdered. Claimed identification.

16. PW-7 is the informant. He had deposed that he

happens to be the informant. His daughter Shobha Devi was married

with Yogendra Yadav in the month of May, 2003. After marriage his

daughter had gone to her sasural where she was residing. She
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 9

occasionally visited her place. Whenever she came, she divulged that

her Sasuralwala is demanding T.V and for that, she was being

physically assaulted. He had informed that for the present he is unable

to provide the same but, as soon as money comes to his hand, he will

provide the same. TV was being demanded by Hazari Yadav, Phul

Kumari and her husband. Then had stated that even after Gauna when

his daughter returned back, narrated the same. Due to poverty, he

failed to fulfill their demand. For the last one year, his daughter was

staying at his place. Hazari Yadav came to effect bidai which was

fixed and then thereafter, he took away deceased Sobha to her sasural.

Even at that very moment, Hazari Yadav had demanded T.V. Then

had stated that about 10-15 days thereafter his son Kumar Jeet Kumar

(PW 5) had gone to the place of his daughter. After returning from

there, he disclosed that his daughter was not there. Then got

information regarding death of his daughter whereupon he along with

others rushed to her place where none was present. He had gone

inside the house. He had not found his daughter. Then had gone to

police station, lodged the case by way of recording fard-beyan. Police

swung into action and during course thereof, dead body was found

and recovered from the Septic tank of one Indal Yadav.

17. Now second set of evidence happens to be those

who were cross-examined. PW-1 happens to be the maternal uncle of
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 10

the deceased. He had deposed that Lal Bahadur (informant) happens

to be his brother in law, (Bahnoi). Shobha Devi was married in the

year 2003 with Yogendra Yadav. Shobha Devi was murdered

whereupon, he along with his brother-in-law and others had gone to

Sasural of Sobha Devi and found all the members absconding.

Shobha Devi was also not present inside the house. Police was

informed, police came and during course of investigation recovered

dead body from the Septic Tank of one Indal Yadav. He had, further

stated that he had put his signature over the fard-beyan having

recorded by his brother-in-law at the police station. He had also

identified his signature over inquest report. Then had stated that her

Sasuralwala were torturing her for fulfillment of demand of dowry in

lieu of TV. Claimed identification.

18. During course of cross-examination he had stated

that deceased had gone to her sasural about 1- ¼ year ago since

before the date of her death. Then had stated that Hazari Yadav had

instructed him to arrange for T.V., whereupon he declined. He had

further stated that he had gone to the sasural of the deceased. After

death, he had gone there, and then he was cross-examined over the

recovery of the dead body. He had also stated that he had seen black

spot over the neck of the deceased. Then had said that one month after

bidai, this occurrence took place. He had further denied the
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 11

suggestion that deceased met with death as was suffering from illness.

He also denied that she was mad. Then had denied that no such kind

of occurrence had taken place rather, being brother-in-law (sala) of

the informant, he had deposed falsely.

19. PW-6 is another son of informant namely,

Amarjeet Kumar. He had deposed to the effect that Shobha Devi, his

sister was married with Yogendra Yadav in the year 2003. After

marriage, his sister had gone to her sasural. Whenever she came, she

used to complain that her Sasuralwala was adamant over TV and for

that, she was being physically tortured. They were demanding TV in

lieu of dowry. Yogendra, Hazari and Phul Kumari were demanding

and further were torturing for the same. In the aforesaid background,

his sister was brought up to his place. Hazari Yadav took her away on

Bidai five days prior to Holi in the year 2005. Then thereafter his

younger brother had gone to her sasural where they have disclosed

that your sister is not present. Then thereafter, he came to know that

his sister has been murdered. His brother immediately returned back

and disclosed the same whereupon he along with his father and others

have gone to sasural of his sister where none was present. On query,

the neighbours had disclosed that after murdering her, her dead body

had already been disposed of. They, on their own, searched the dead

body but could not succeed. Thereafter, his father had instituted the
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 12

case, police came and during course of investigation, recovered the

dead body from the Septic tank of one Indal Yadav. Identified the

accused.

20. During cross-examination at para-5, he had stated

that for the first time, he is deposing in the court. He had further stated

that his sister was being assaulted by Yogendra, Hazari and his wife

for procurement of TV. These three persons were insisting upon

procurement of TV in lieu of dowry. At Para-6, he had stated that he

is not remembering on which date bidai of his sister was affected. His

brother Kumar Jeet had brought his sister. Hazari Yadav took away

his sister on Bidai in the year 2005, 5 days prior to Holi. His brother

had gone to place of his sister on 06.4.2005 and after returning

therefrom who disclosed regarding the aforesaid mishappening. They

have not disclosed the date and time of death. In Para 9, he had stated

that he along with his father Satyendra Yadav had made statement

before the Police. His brother had also made statement before the

police.

21. PW-8 is the I.O, who had deposed that on

06.4.2005, he was O/C of Dulhin Bazaar P.S. On the fard-beyan of

Lal Bahadur, he registered Bikram (Dulhin Bazaar) P.S. case no.

100/2005 and took up investigation (exhibited relevant document). He

recorded further statement of informant and then proceeded to place
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 13

of occurrence. In para-3, he had detailed the place of occurrence

which happens to be the house of accused, consisting of three rooms

at eastern side which are under construction. At western side, two

rooms were also found which is also under construction. Only one

room is habitable wherein the deceased was living. Then had shown

the boundary. The second P.O has been identified as the septic tank of

Indal Yadav lying 100 yards east to the house of the accused.

22. During course of investigation, dead body was

recovered therefrom and then identified the said place with the

boundary. Recorded statement of the witnesses. Prepared inquest

report and sent the dead body for post mortem (exhibited). Then had

submitted charge-sheet against the accused. During course of cross-

examination at Para 7, he had stated that with regard to presence of

dead body in the septic tank of Indal, he got the information during

course of investigation. At Para 8, he had stated that he had not

mentioned the length, breadth of the aforesaid tank and further,

whether it was covered or not. In para 9, he had further stated that he

had not investigated over the mental condition, physical condition of

the deceased as there was no such kind of complaint. In Para 10, he

had stated that he had not mentioned in the case diary with regard to

the actual date of death of Shobha Devi, the last date on which she

was seen by the people. In para- 11, he had further stated that he had
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 14

not mentioned in the case diary as to who had firstly seen the dead

body in the septic tank and who had taken it out. However, inquest

report was prepared at that place itself. Then had also stated that he

had not mentioned in the diary that vermillion was over her head,

bangle was over her hands. He had further stated that there was

scratch mark over elbow of the deceased while black spot over the

neck. Then had denied the suggestion that Hazari Yadav and his wife

happen to be older persons. Then had denied the suggestion that his

investigation happens to be collusive one.

23. PW-9, is the peon who had brought up the attested

photocopy of inquest report, post mortem report, dead body challan as

well as letter having at the end of the Deputy Superintendent, Sadar

Hospital, Danapur addressed to the court and in likewise manner he

was cross-examined.

24. Admittedly, post mortem report is not a classified

document in terms of Section 293 of the Cr.P.C and that being so, it

would have been exhibited in a manner as required under the

Evidence Act. Doctor has not been examined. Original post mortem

report has not come up. Therefore, post mortem register would have

been before the court and in likewise manner, there should have been

evidence at the end of the prosecution in terms of Section 32(1) of the

Evidence Act disclosing the fact that either the doctor was dead or it
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 15

was very difficult or without inordinate delay, his appearance could

not have been procured or his whereabout was not known, then in that

circumstances, secondary evidence would have been led. Therefore,

post-mortem report would not be admissible in the eye of law.

However, from the mode of cross-examination, it is apparent that

death is not under dispute.

25. Now coming to other aspect, it is needless to say

that for substantiating a case under Section 304B IPC as well as

before having the onus shifted upon the accused in terms of section

113B of the Evidence Act, the prosecution has to prove (a) death has

occurred within seven years of marriage, (b) death should be on

account of burn or bodily injury or otherwise than normal

circumstance (c) there should be demand of dowry and for that she

has been tortured soon before her death (d) by her husband or by

relative of the husband.

26. In case, prosecution succeeds in substantiating the

aforesaid ingredients, then in that circumstance, the onus shifts upon

the accused to explain the same. At the present moment, the

controversial aspect happens to be with regard to the interpretation of

„soon before‟ and on that very score, leaned senior counsel for the

appellant has relied upon the case of ‘State of Karnataka v.Dattaraj

ors. reported in (2016) 12 SCC 331 whereunder the aforesaid issue
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 16

has been taken up under the following paragrphs:- 15, 16.

15. During the course of hearing, learned counsel
representing the State of Karnataka vehemently contended,
that the acquittal of the accused by the High Court, was in
clear violation of the declaration of law, with reference to
the provisions under which the accused were charged.
Insofar as the instant aspect of the matter is concerned,
reliance in the first instance was placed on the decision
rendered by this Court in Kans Raj v. State of Punjab
Ors., (2000) 5 SCC 207. Learned counsel invited our
pointed attention to the following observations recorded
therein:- “15. It is further contended on behalf of the
respondents that the statements of the deceased referred to
the instances could not be termed to be cruelty or
harassment by the husband soon before her death. “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,
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 17

under the circumstances, be treated as having become stale
enough.” (emphasis supplied) Learned counsel submitted,
that the view expressed in the Kans Raj case (supra) had
been reiterated in another decision rendered by this Court in
Tummala Venkateswar Rao v. State of Andhra Pradesh,
(2014) 2 SCC 240.

16. Reliance was also placed by the learned counsel
for the appellant, on a recent judgment rendered by a three-
judge Bench of this Court in Rajinder Singh v. State of
Punjab, (2015) 6 SCC 477, wherein Section 304B has been
explained to the effect, that the term “dowry” expressed
therein, would not be limited to the traditional meaning
attached to the aforesaid expression, but would include a
demand for money for other purposes as well. In this behalf
it would be relevant to mention, that the three-judge Bench
did not accept the position expressed in Appasaheb v. State
of Maharashtra, (2007) 9 SCC 721, in connection whereof,
this Court had first explained the position in the Appasaheb
case (supra), as under:-

“11. This Court has spoken sometimes with divergent
voices both on what would fall within “dowry” as defined
and what is meant by the expression “soon before her
death”. In Appasaheb v. State of Maharashtra, (2007) 9
SCC 721, this Court construed the definition of dowry
strictly, as it forms part of Section 304-B which is part of a
penal statute. The Court held that a demand for money for
defraying the expenses of manure made to a young wife
who in turn made the same demand to her father would be
outside the definition of dowry. This Court said: (SCC p.
727, para 11) “11. …A demand for money on account of
some financial stringency or for meeting some urgent
domestic expenses or for purchasing manure cannot be
termed as a demand for dowry as the said word is normally
understood. The evidence adduced by the prosecution does
not, therefore, show that any demand for „dowry‟ as defined
in Section 2 of the Dowry Prohibition Act was made by the
Appellants as what was allegedly asked for was some
money for meeting domestic expenses and for purchasing
manure.” And thereupon, having examined the object and
intent of the legislation, this Court held in the Rajinder
Singh case (supra), as under:- “26. The facts of this appeal
are glaring. Demands for money were made shortly after
one year of the marriage. A she-buffalo was given by the
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 18

father to the daughter as a peace offering. The peace
offering had no effect. The daughter was ill-treated. She
went back to her father and demanded money again. The
father, then, went along with his brother and the Sarpanch
of the village to the matrimonial home with a request that
the daughter be not ill-treated on account of the demand for
money. The father also assured the said persons that their
money demand would be fulfilled and that they would have
to wait till the crops of his field are harvested. Fifteen days
before her death, Salwinder Kaur again visited her parents’
house on being maltreated by her new family. Then came
death by poisoning. The cross-examination of the father of
Salwinder Kaur has, in no manner, shaken his evidence. On
the facts, therefore, the concurrent findings recorded by
both the courts below are upheld. The appeal is dismissed.”
Based on the above decision it was the vehement contention
of the learned counsel for the appellant, that the demands
made by the accused for purchase of agricultural land, as
also, with reference to a sewing machine, were liable to be
treated as demands constituting “dowry”.

27. That means to say, „soon before‟ her death is a

flexible term could not be accepted in its rigidity, however, should be

identified with proximity but, varies on fact of case to case. So far

present case is concerned, there happens to be no challenge at the end

of the appellants that there was Bidai of deceased 5 days prior to Holi

in the year 2005. So, Holi happens to be in the last day of Falgun

identifying invariably in the English Calender as month of March and

the death had occurred in the first week of April. In likewise manner,

as the contention of the prosecution witness, more particularly, the

informant PW-7, has not been challenged as the defence could not be

able to cross-examine him so, demand by Hazari Yadav on the date of
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 19

Bidai itself is found uncontroverted and in likewise manner, the

demands having previously made and having substantiated at the end

of both the sons of the informant i.e., PW-5, PW-6. Surprisingly,

while cross-examining, PW-6, he had not been tested in a manner as

was expected at the end of appellant although he had spoken demand

of dowry as well as torture on that very pretext. Furthermore, from the

statement of accused recorded under Section 313 CrPC, it is evident

that the gist of allegation has been put to them, moreover, they faced

trial and were duly acknowledged with the incriminating material

having been produced against them. Apart from this, during course of

arguments, the appellants failed to show how they have been

prejudiced.

28. Consequent thereupon, the judgment of conviction

recorded by the learned lower court did not attract interference.

However, considering the facts that appellant, Phul Kumari Devi

happens to be mother of six children inconsonance with her status,

being illiterate, coming from lower strata of the society, patriarchal

approach deprived her to defend herself in proper way, needs some

sort of consideration over her sentence having been inflicted by the

learned lower court whereupon, reduced to 5 years instead of 7 years

inflicted by the learned lower court under Section 304B IPC

maintaining the sentence relating to Section 498A IPC with a further
Patna High Court CR. APP (SJ) No.358 of 2015 dt.10-05-2018 20

direction to set off against the period having undergone during course

of trial.

29. With the aforesaid modification in sentence,

appeal is dismissed.

30. Appellants are on bail, hence their bail bonds are,

hereby, cancelled directing them to surrender before the learned lower

court within a fortnight to serve out remaining part of sentence failing

which the learned lower court will proceed in accordance with law.

31. However, it is made clear that learned lower court

as well as the Jail Superintendent will calculate whether the appellant,

Hazari Yadav, on account of his being under custody for 9 years and

odd months had completed the tenure of sentence as per Jail Manual,

if so, he will be released forthwith.

(Aditya Kumar Trivedi, J)
perwez

AFR/NAFR AFR
CAV DATE N/A
Uploading Date 15.05.2018
Transmission 15.05.2018
Date

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