Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 1

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.37 of 2009
Arising out of P. S. Case No. -0 Year- null Thana -null District- M UNGER

1. Bijay Kumar Sah, son of Karu Sah

2. Phool Devi, wife of Karu Sah

3. Karu Sah, son of Late Lal Mohan Sah, all are resident of Mungoroura, P.S.-East
Colony, Jamalpur, District-Munger.

…. …. Appellant/s
Versus
State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Tarun Kumar Sinha-Advocate
For the Respondent/s : Mr. Parmeshwar Mehta-A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 01-10-2018

Appellants Bijay Kumar Sah, Phool Devi and Karu Sah

have been found guilty for an offence punishable under Section 304B

of the I.P.C. and each one has been sentenced to undergo R.I. for ten

years with a further direction that the period so undergone during

course of trial, will be subject to set off in terms of Section 428 of the

Cr.P.C. vide judgment of conviction dated 18.11.2008 and order of

sentence dated 20.11.2008 passed by the Additional Sessions Judge,

Fast Track Court No.-IV, Munger in Sessions Trial No.12 of 2007.

2. Kiran Devi (PW-6) gave her fard-bayan on 27.05.2005

before the police official at village-Mungoroura at the house of Suresh

Prasad Sah where her daughter Gunjan Devi (deceased) was residing

along with her husband Bijay Kumar Sah, father-in-law, mother-in-
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 2

law along with other family members on tenancy, had disclosed inter

alia that Gunjan Devi was married last year with Bijay Kumar Sah,

son of Karu Sah. After marriage, she had gone to sasural wherefrom

she was taken to the house of Suresh Prasad Sah where all the family

members were residing under tenancy. Just after 4-5 days of marriage,

Phool Devi (mother-in-law) came to her and asked for Rs.10,000/-, as

dowry (due) and further, threatened that in case of non-payment, she

will not allow her daughter to live peacefully. On account of financial

crunch, she could not provide the aforesaid amount and in the

aforesaid background, the mother-in-law, father-in-law, Dewar Ajay

Kumar began to manhandle her daughter and by such activity,

inflicted physical cruelty over her. Just about ten days, lastly the

mother-in-law Phool Devi kicked her out along with Bijay Kumar

Sah, her son-in-law. Thereafter, her son-in-law Bijay Kumar Sah,

daughter Gunjan Devi were employed by Munna Sah, Gola Bazar

where they began to discharge menial work in order to earn their

livelihood. After an interval of 4-5 days, Phool Devi again approached

them and then, forcibly brought them to her place where her son-in-

law used to hand over the amount, which he earned in lieu of daily

wages. Unfortunately, he could not get job for few days, whereupon

again her son-in-law as well as daughter were ousted by Phool Devi.

Thereafter, they both came to her place where they were allowed to
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 3

stay. Her son-in-law engaged in daily wages. They remained at her

place for quite a long time about one and half months ago. Father-in-

law Karu Sah, mother-in-law Phool Devi came to her place and

anyhow, succeeded in taking away her son-in-law as well as her

daughter to their place. Yesterday, i.e. on 26.05.2005, one rickshaw

puller informed that their daughter has been murdered. While her dead

body was being removed, same has been resisted by the local

inhabitants. On account thereof, they rushed and came to the place of

residence of her daughter where they found the dead body. None was

present. In the aforesaid background, the informant had suspected

murder of her daughter in the background of non-fulfilment of

demand of dowry to a tune of Rs.10,000/- by her sasuralwala.

3. After registration of East Colony P. S. Case No.18 of

2005, investigation was taken up and after concluding the same,

chargesheet was submitted facilitating 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 of the occurrence. It has also been

pleaded that deceased was married since before with one Bablu and

subsequently thereof, she has been married with accused Bijay Kumar

Sah, whereupon she was not at all pleased with the affair and in the
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 4

aforesaid background, committed suicide. In order to substantiate the

same, oral as well as documentary evidence has also been adduced.

5. In order to substantiate its case, prosecution had

examined altogether eight PWs, who are PW-1, Manoj Sah, PW-2,

Suresh Prasad Sah, PW-3, Chhotu Kumar Laheri, PW-4, Meena Devi,

PW-5, Promod Sah Laheri, PW-6, Kiran Devi, PW-7, Shri Madan

Mohan Prasad and PW-8, Dr. Rajiv Ranjan Verma. Side by side, had

also exhibited as Exhibit-1, fard-bayan, Exhibit-2, formal F.I.R.,

Exhibit-3, inquest report, Exhibit-4, challan and Exhibit-5, post

mortem report. On the other hand, defence had also examined two

DWs, DW-1, Guria Kumari and DW-2, Permanand Prasad and had

also exhibited, Exhibit-A, Exhibit-A/1, copy of the Sanha and

Exhibit-B, B/1, U.P.C., respectively.

6. Learned counsel for the appellants while assailing the

judgment of conviction and sentence impugned has raised manifold

argument. The first and foremost is that no offence under Section

304B of the I.P.C. is made out in the background of the fact that the

major ingredients of Section 304B of the I.P.C. has not been proved

by the prosecution. In order to substantiate the same, it has been

submitted that there happens to be no evidence available on the record

that soon before her death, deceased was tortured with regard to

demand of dowry by the husband or relative of the husband. There
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 5

happens to be an allegation that once upon a time, there was demand

at the end of the appellant Phool Devi, but the same was just after five

days of marriage and since thereafter, there happens to be no evidence

having on behalf of prosecution to suggest that there was persistence

of demand and for that, deceased was being tortured extending too the

period soon before her death. So, the finding recorded by the learned

lower Court is against the settled principle of law.

7. Furthermore, it has also been submitted that it was

incumbent upon the prosecution to have substantiated its case beyond

all reasonable doubt. From the evidence available on the record, it is

apparent that prosecution has miserably failed. In its continuity, it has

been submitted that it happens to be an admitted fact at the end of the

prosecution that deceased along with appellants were residing in a

room hired by them belonging to Suresh Pd. Sah. From the evidence

of the PW-7 (I.O.), it is evident that house is occupied by so many

tenants including the landlord. There happens to be evidence of PW-7

that he had recorded statement of all of them, but surprisingly neither

the landlord nor any of the tenant has been examined at the end of the

prosecution in order to substantiate the case. That being so, the

conduct of the prosecution is found not above the board.

8. It has further been submitted that the probability of the

deceased to have committed suicide was much more probable and for
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 6

that, the sister of the appellant Bijay Kumar Sah namely Guria

Kumari has been examined as DW-1, who had categorically stated

that deceased was earlier married with Bablu and then, she has been

re-married with Bijay Kumar Sah and in the aforesaid background,

she was suffering from some sort of depression, whereupon she

committed suicide. In the aforesaid facts and circumstances of the

case, it is evident that no case, as alleged, at the end of the prosecution

with regard to dowry death is found and that being so, the conviction

and sentence recorded at the end of the learned lower Court is fit to be

set aside.

9. It has also been submitted that appellants were very

much apprehensive with regard to dubious character of the

prosecution and for that, they have already intimated the officials

through postal processes and for that, the postal certificate along with

copy of the Sanha have properly been exhib ited. In an alternative, it

has also been considered that in case, the case of the prosecution is

found proved, then in that circumstance, considering the age of the

appellants, considering the period of custody, sentence inflicted by the

learned lower Court be reduced as already undergone.

10. On the other hand, learned Additional Public

Prosecutor while supporting the finding recorded by the learned lower

Court has submitted that from the judgment impugned, it is apparent
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 7

that learned lower Court had recorded finding adverse to the

appellants after proper scrutiny of the materials having been adduced

on behalf of respective parties. That being so, the judgment of

conviction and sentence attracts no interference.

11. In order to attract Section 304B of the I.P.C.,

following ingredients are to be duly satisfied by the prosecution:-

a) The death should be within seven years of marriage.

b) It should be by burn or by injury or other wise than

normal circumstance.

c) The deceased would have seen treated with torture or

cruelty soon before her death by the husband or relative of

the husband.

d) Such cruelty or harassment must be in connection with

demand of dowry.

If those ingredients are found properly surfaced, then in

that circumstance, in terms of Section 113B of the Evidence Act, there

would be presumption of dowry death and further, the accused would

be under obligation to rebut the same.

12. The grey area as has been perceived under series of

judicial pronouncement at the end of the Hon’ble Apex Court is with

regard to the time “soon before her death” and lastly, it has been

concluded that it varies case to case considering the facts thereof.

There should not be straight jacket formula with regard thereto. In
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 8

Maya Devi and another v. State of Haryana reported in 2016

CRI.L.J. 629, it has been held:-

“16. To attract the provisions of Section 304B, one of the

main ingredients of the offence which is required to be

established is that “soon before her death” she was

subjected to cruelty or harassment “for, or in connection

with the demand for dowry”. The expression “soon before

her death” used in Section 304B IPC and Section 113B of

the Evidence Act is present with the idea of proximity test.

In fact, learned senior counsel appearing for the appellants

submitted that there is no proximity for the alleged demand

of dowry and harassment. With regard to the said claim,

we shall advert to while considering the evidence led in by

the prosecution. Though the language used is “soon before

her death”, no definite period has been enacted and the

expression “soon before her death” has not been defined in

both the enactments. Accordingly, the determination of the

period which can come within the term “soon before her

death” is to be determined by the courts, depending upon

the facts and circumstances of each case. However, the

said expression would normally imply that the interval

should not be much between the cruelty or harassment

concerned and the death in question. In other words, there

must be existence of a proximate and live link between the

effect of cruelty based on dowry demand and the death
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 9

concerned. If the alleged incident of cruelty is remote in

time and has become stale enough not to disturb the mental

equilibrium of the woman concerned, it would be of no

consequence.

…………………………………………………………….

20. With these principles in mind, let us analyse the

evidence led in by the prosecution. The marriage of

Kavita@Kusum (since deceased) was solemnized with

Karamvir on 17.07.1994. Kavita died on 26.09.1996 after

consuming some poisonous substance at her matrimonial

home. The father of the deceased lodged a complaint

against the accused persons that he had given dowry on the

eve of marriage beyond his means but after 20-25 days of

marriage, Karamvir-appellant No. 2 herein, Maya Devi-

appellant No.1 herein and brothers Dharamveer and

Paramveer and sister Sonika, started harassing his

daughter for more money. When Kavita visited her father‟s

house, she narrated the entire tale of woes to her parents

and brother. When the complainant enquired about the

matter, the appellants informed the complainant that the

appellant No. 2 is in need of money and they also have to

perform the marriage of Sonika. A sum of Rs. 20,000/- was

paid to appellant No. 2 so that the daughter of the

complainant is not harassed. It was further stated that the

complainant received a letter of his daughter regarding
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 10

continuous demand for dowry and sufferings meted out to

her. The complainant paid a further sum of Rs. 25,000/- for

the purchase of refrigerator and gold chain to the appellant

No. 2. Kavita was sent with her husband on the assurance

that the accused family would not harass her in future.

Even on the day of „sakrant‟, when the brother of the

deceased visited her matrimonial home, the accused

threatened them that the household articles of Kavita will

be thrown out. A further demand of Rs. 30,000/- was made

to meet the kitchen expenses by the appellants. Since that

demand was not fulfilled, the deceased was left with her

father at Delhi. Subsequently, the complainant requested to

compromise the matter and tendered his apology in

writing. In June 1996, the deceased was brought to home

by the accused persons. After some days, when the

complainant visited her matrimonial home at Rohtak, he

was informed that situation has not changed and whenever

she brings money, the peace returns for 10-20 days

otherwise she is beaten mercilessly by the accused persons.

On 26.09.1996, the complainant got the information about

the death of his daughter. The case was committed to the

Court of Sessions and the accused were found guilty under

Section 304B and 498A of the IPC. There is ample evidence

that the deceased was harassed, maltreated and was

subjected to cruelty, for and in connection with the

demands for dowry by the accused. Admittedly, appellant
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 11

No. 2 was present in his office on 26.09.1996 located at

M.D. University Campus at Rohtak but he did not attend to

his wife at the relevant time. The assertion made by learned

senior counsel for the appellants that the deceased was

suffering from moderate depressing episode and was

having suicidal tendencies prior to her death is of no

consequence. Dr. V.P. Mehla (DW-2) was apprised by the

deceased about the harassment and the maltreatment by

her in-laws a month prior to her death when she was taken

to the aforesaid doctor for the alleged treatment. According

to DW-2, the deceased was so much depressed as a result

of the act of cruelty meted out to her at the hands of the

appellants that she developed suicidal tendencies. The

testimony of DW-2 shows that the accused had created

such a charged environment in her matrimonial home that

she developed suicidal tendencies. Except appellant No. 1

herein, all were living in the house at Rohtak. Appellant

No. 1 herein was a frequent visitor to that house and she

herself admitted this fact in her statement under Section

313 of the Code. Thus, it is very much clear that accused

persons maltreated, harassed and subjected the deceased

to cruelty, after the solemnization of her marriage with the

appellant No. 2 herein, during her life time and soon before

her death, for and in connection with the demands for

dowry, who died at her matrimonial home within seven

years of her marriage otherwise than in normal
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 12

circumstances.

21) Section 304B IPC does not categorise death as

homicidal or suicidal or accidental. This is because death

caused by burns can, in a given case, be homicidal or

suicidal or accidental. Similarly, death caused by bodily

injury can, in a given case, be homicidal or suicidal or

accidental. Finally, any death occurring “otherwise than

under normal circumstances” can, in a given case, be

homicidal or suicidal or accidental. Therefore, if all the

other ingredients of Section 304B IPC are fulfilled, any

death (homicidal or suicidal or accidental) whether caused

by burns or by bodily injury or occurring otherwise than

under normal circumstances shall, as per the legislative

mandate, be called a “dowry death” and the woman‟s

husband or his relative “shall be deemed to have caused

her death”. The section clearly specifies what constitutes

the offence of dowry death and also identifies the single

offender or multiple offenders who has or have caused the

dowry death.”

13. In the aforesaid background, now the evidences are

to be seen. From examination of DW-1 as well as from the evidences

of PW-3, PW-4, PW-5 and PW-6, there happens to be no controversy

with regard to marriage of the deceased Gunjan Devi with the

appellant Bijay Kumar Sah, just a year prior to the date of occurrence.
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 13

That means to say, the death happens to be within seven years of

marriage. So, the first ingredient is found duly substantiated.

14. Now, coming to cause of death, it also happens to

be out of controversial issue as defence had also admitted it a case of

suicide as DW-1, sister-in-law of the deceased had admitted the same.

Be that as it may, whether it happens to be a case of suicide or

homicide, for that, evidence of doctor (PW-8) is to be properly

considered. PW-8 had conducted post mortem over the dead body of

deceased Gunjan Devi on 27.05.2005 at about 11.30 A.M. and found

the following:-

I) Protruded tongue and eye ball (left),

II) Skin blackens over neck and chest.

III) Peeling skin with blister on back and right arm.

On dissection, extra vexation of blood and blood clot.

Trachea found to be fractured with blood clot in tracheal lumea. Death

in the opinion of the doctor was due to asphyxia as a result of

strangulation caused by hard blunt substance. Time elapsed since

death more than 48 hours. Doctor was cross-examined on this score

whether those injuries would be suicidal and the doctor blatantly

refused the same. That being so, it happens to be a case of homicide

that means to say, on account of ante mortem injury and so, the

second limb of the requirement of Section 304B of the I.P.C. is also
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 14

found satisfied.

15. PW-1 is the rickshaw puller, who had admitted to

have informed the prosecution party with regard to murder of the

deceased. PW-2, though declared hostile, but admitted death of the

deceased while she was staying along with accused persons. Now,

coming to the evidence of remaining witnesses, PW-3, PW-4, PW-5

and PW-6 have categorically stated that just after spending 4-5 days

of the marriage, the accused persons advanced demand of Rs.10,000/-

in lieu of dowry and for that, deceased was subjected to torture, which

the deceased also conveyed to the PW-5 and PW-6, who were parents

after coming to her maika, whereupon they have gone there, talked

and then, after consoling the deceased persuaded her to stay and

during course of her stay, she was ultimately done to death. The most

crucial aspect as is evident from their testimony is that those

witnesses, more particularly PW-5 and PW-6, the parents have not

been cross-examined over demand as well as torture inflicted at the

end of the accused on account of non-fulfilment of demand of dowry.

Non-cross-examination of a witness on a particular point speaks a lot

even extending an admission at the end of the adversary. In Gian

Chand others vs. State of Haryana reported in 2013(4) P.L.J.R. 7

(S.C.), it has been held:-

“11. The effect of not cross-examining a witness on a
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 15

particular fact/circumstance has been dealt with and

explained by this Court in Laxmibai (Dead) Thr. L.Rs. Anr.

v. Bhagwanthuva (Dead) Thr. L.Rs. Ors., AIR 2013 SC

1204 observing as under:

“31. Furthermore, there cannot be any dispute with respect to

the settled legal proposition, that if a party wishes to raise

any doubt as regards the correctness of the statement of a

witness, the said witness must be given an opportunity to

explain his statement by drawing his attention to that part of

it, which has been objected to by the other party, as being

untrue. Without this, it is not possible to impeach his

credibility. Such a law has been advanced in view of the

statutory provisions enshrined in Section 138 of the Evidence

Act, 1872, which enable the opposite party to cross-examine a

witness as regards information tendered in evidence by him

during his initial examination in chief, and the scope of this

provision stands enlarged by Section 146 of the Evidence Act,

which permits a witness to be questioned, inter-alia, in order

to test his veracity. Thereafter, the unchallenged part of his

evidence is to be relied upon, for the reason that it is

impossible for the witness to explain or elaborate upon any

doubts as regards the same, in the absence of questions put to

him with respect to the circumstances which indicate that the

version of events provided by him, is not fit to be believed,

and the witness himself, is unworthy of credit. Thus, if a party

intends to impeach a witness, he must provide adequate

opportunity to the witness in the witness box, to give a full
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 16

and proper explanation. The same is essential to ensure fair

play and fairness in dealing with witnesses.” (Emphasis

supplied)

(See also: Ravinder Kumar Sharma v. State of Assam Ors.,

AIR 1999 SC 3571; Ghasita Sahu v. State of Madhya

Pradesh, AIR 2008 SC 1425; and Rohtash Kumar v. State of

Haryana, JT 2013 (8) SC 181).”

12. The defence did not put any question to the

Investigating Officer in his cross-examination in respect of

missing chits from the bags containing the case

property/contraband articles. Thus, no grievance could be

raised by the appellants in this regard.”

16. PW-7 is the I.O. He, during his examination-in-

chief, had categorically stated his presence at the place of accused

where dead body of deceased was kept over “Ranthi”. Recorded fard-

bayan, prepared inquest report, registered case, inspected P.O.,

detailed the same rented house of the accused. Received P.M. Repot,

recorded statement of the witnesses and then, submitted chargesheet.

During cross-examination, he had stated that he received information

on the following day at about 5.30 a.m. He had not found

incriminating article at the P.O. He had recorded statement of

landlord, other tenants. When he reached at the P.O., large number of

persons were present.

17. Now, coming to the legal fiction having allowed in
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 17

accordance with Section 113B of the Evidence Act, as disclosed

above, once the prosecution succeeds in substantiating the case of the

dowry death, then in that circumstance, there would be presumption

though rebuttable at the end of the accused. In order to rebut, the DW-

1 has come up over factual aspect and as stated above, she had

introduced a new theme, which was never suggested to any of the

PWs that deceased was earlier married to Bablu and then, she has

been married to the appellant Bijay Kumar Sah. Furthermore, it is also

evident after going through the evidence of DW-1 that she had not

disclosed whereabouts of Bablu, proper identification of Bablu.

Moreover, she raised the theme of suicide, which as per evidence of

doctor, found completely disapproved.

18. In the aforesaid facts and circumstances of the case,

it is found that the deceased died on account of homicidal death due to

asphyxia caused by strangulation within one year of marriage and

during the intervening period, there was demand of Rs.10,000/- as

dowry, which the prosecution party were not able to fulfil and for that,

she was subjected to cruelty at the hands of accused, which ultimately

cost the life of the deceased. On the part of failure having at the end of

the appellant in properly cross-examining the witnesses, more

particularly having failed to cross-examine at least the parents PW-5

and PW-6, over the demand, torture and further, by way of examining
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 18

DW-1, did not succeed in discharging the liberty. So far Exhibit-B is

concerned, the Hon’ble Apex Court has held that mode of process

adopted through the U.P.C. is not at all presumptive one in the

background of the fact that it could be manufactured. Apart from this,

it is evident from Exhibit-A that though it bore the seal of the Chief

Judicial Magistrate dated 28.06.2004, but surprisingly, it did not

disclose presence of the signature of the Chief Judicial Magistrate and

so, its authenticity has become doubtful and in likewise manner, is the

status of Exhibit-A/1.

19. True, it is that PW-3 to PW-6 are Naiharwala of

deceased. But simply because, they are related with deceased their

evidences could not be brushed aside, as they are only the natural

witness to depose over demand and cruelty. Moreover, when they

were not at all tortured over demand and cruelty, and the defence

could not be able to rebut the presumption as per Section 113B of the

Evidence Act. So, there happens to be no ground to doubt over

testimony of the witnesses.

20. After giving anxious consideration to the facts and

circumstances of the case, it is evident that instant appeal lacks merit

and is accordingly, dismissed maintaining the sentence, though

pleaded that it should be reduced as undergone, in the background of

activity having been played by them with the deceased even within a
Patna High Court CR. APP (SJ) No.37 of 2009 dt.01-10-2018 19

year of her marriage. Appellants are on bail, hence, their bail bonds

are hereby cancelled directing them to surrender before the learned

lower Court within four weeks to serve out the remaining part of

sentence, failing which the learned lower Court will be at liberty to

proceed against the appellants in accordance with law.

(Aditya Kumar Trivedi, J)
Vikash/-

AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 03.10.2018
Transmission 03.10.2018
Date