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Hareram Sah vs The State Of Bihar on 11 May, 2018

Criminal Appeal (SJ) No.552 of 2015
Arising Out of PS.Case No. -144 Year- 2013 Thana -THAWE District- GOPALGANJ

Hareram Sah Son of Late Ramanand Sah Resident of Village – Gawandari, P.S.
Thawe, District – Gopalganj.

…. …. Appellant/s
The State of Bihar.

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Ranjan Kumar Jha,
Chandan Kumar Kashyap
Dharamveer, Advocates
For the Respondent/s : Mr. Sujit Kumar Singh

Date: 11-05-2018

Appellant, Hareram Sah has been found guilty for an

offence punishable under Section 498A/34 of the I.P.C, 306/34 of the

I.P.C vide judgment of conviction dated 25.07.2015 and sentenced to

undergo R.I for 2 years as well as to pay fine appertaining to Rs.

1,000/- in default thereof to undergo S.I for one month, under Section

498A I.P.C, and sentenced to undergo R.I of 7 years as well as to pay

fine appertaining to Rs. 2,000/- and in default thereof to undergo S.I

for one month, under Section 306/34 I.P.C with a further direction to

run the sentences concurrently vide order of sentence dated

31.07.2015 passed by Additional Sessions Judge, 5th, Gopalganj in

Sessions Trial No. 364/2014.

2. Deceased, Babita Devi, while was admitted at Sadar

hospital, Gopalganj for her treatment on account of burn injury, gave
Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 2

her fard-beyan on 11.11.2013 at about 11 A.M alleging inter alia that

her marriage was solemnized with Hare Ram Sah, son of late Ram

Chandra Sah of village- Gabandari, P.S- Thawe, Dist. Gopalganj and

out of said wedlock, she has begotten a son who is aged about 5 years.

On account of torture frequently exerted against her by her husband

Hare Ram Sah, mother-in-law Rambati Devi and sister-in-law Devanti

Devi and as they were not inclined to allow her to stay on that score,

as a result of which, for the last 4 years, she was staying at her

Naihar. About four months ago, she came from her Naihar to sasural

and began to stay during course of which, her husband, mother-in-law

and sister-in-law physically assaulted her and began to coerce her to

leave. On 10.11.2013 at about 8 P.M, her husband Hare Ram Sah,

mother-in-law Rambati Devi and sister-in-law Devanti Devi after

assaulting her, forced her to leave the place whereupon she, lastly

poured k-oil upon her and then lit fire as a result of which, she became

badly burnt. Then thereafter, she has been shifted to the Thawe

hospital by the villagers and from there referred to Gopalganj where

she is being treated. The aforesaid fard-beyan was recorded in

presence of medical officer, Gopalganj who endorsed the same. As is

evident from the record, after registration of Thawe P.S. Case No.

144/2013 deceased died and in the aforesaid background, after

recording statement of witnesses, procuring the post mortem report
Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 3

and finding the allegation true, the charge sheet was submitted

facilitating the trial meeting with the ultimate result, subject matter of

instant appeal.

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

examination as well as statement recorded under Section 313 Cr.P.C

is that of complete denial.

4. Furthermore, it has been pleaded that during course

of cooking, the deceased caught hold of fire from the furnace

accidentally, on account thereof, sustained burn injuries whereupon

shifted to the hospital where during course of treatment she died.

However, neither oral nor documentary evidence has been adduced.

5. In order to substantiate its case, prosecution had

examined altogether six PWs out of PW-1, Ram Chandra Sah, PW-2,

Parmatma Sah, PW-3, Krishna Sah, PW-4, Ramashray Sah, PW-5,

Rajan Sah and PW-6, Mahendra Kumar. Side by side had also

exhibited, Ext.1, fard-beyan. As stated above, nothing has been

adduced on behalf of defence.

6. Learned counsel for the appellant vehemently

submitted that the finding recorded by the learned lower court

happens to be based upon conjecture and surmises whereupon is fit to

be set aside. Furthermore, it has also been submitted that learned

lower court had not considered the factual aspect as well as the legal
Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 4

aspect involved in this case in its right perspective. To substantiate the

same, it has been submitted that doctor has not been examined, on

account thereof, post mortem has not come up on record. I.O has not

been examined on account thereof, the objective finding relating to

the place of occurrence also happens to be away from the record. In

the background of the aforesaid legal deficiency when the evidences

of the witnesses are gone through, it is evident that save and except

PW-6, all the witnesses have not substantiated the case of the

prosecution. Now coming to the evidence of PW-6, it has been

submitted that his evidence also lacks credibility in the background of

the fact that he was the police official of Thawe Police Station while

the deceased was admitted at Sadar hospital, Gopalgaj where police

officials were being deputed for recording fard-beyan of the injured.

Ignoring the same and having presence of PW-6 is a circumstance

which casts doubt over credibility of PW-6. Furthermore, it has also

been submitted that the doctor whose signature happens to be over the

fard-beyan, has not been examined in order to explain that at the time

of recording of the statements of deceased, she was in a fit mental

condition. Furthermore, from perusal of the aforesaid statement

(Ext.1), it is apparent that deceased herself disclosed that she was

taken to Thawe hospital and from there she was taken to Sadar

hospital. Admittedly, neither her Naiharwala was there nor any
Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 5

villager came forward to say that he had lifted the injured /deceased to

Thawe hospital and then to Sadar hospital so, it was the appellant who

lifted her to Thawe hospital and then to Sadar hospital and further was

taken all necessary steps in getting the victim properly treated in order

to save her life but unfortunately, she died. In the aforesaid facts and

circumstances of the case, it could not be said that on account of any

illegal activity detrimental to the interest of the deceased was adopted

at the end of appellant whereupon she committed suicide.

7. It has also been submitted that from the fard-beyan,

it is apparent that deceased had categorically stated that her marriage

was solemnized about 10 years ago. In the aforesaid background, the

presumption in terms of Section 113A of the evidence act could not

be available. Furthermore, in order to buttress his plea, learned

counsel for the appellant has relied upon Ramesh Kumar Vs. State of

Chattisgarh reported in (2001) 9 SCC 611.

8. Before coming to legal aspect, first of all factual

aspect is to be seen. PW-2 is the co-villagers of the appellant. He had

stated that marriage was solemnized about 7-8 years ago. Deceased

had begotten a child who is about 6 years of age. While Babita Devi,

the deceased was cooking, she caught fire, as a result of which, she

died. She was treated at Gopalganj Sadar hospital and she died during

course of treatment. Her husband or anybody else relating to her
Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 6

husband never demanded the dowry. During cross-examination, he

had stated that deceased Babita Devi or her father or any family

member had not complained against the accused persons. He had also

stated that she was being kept in a congenial, harmonious atmosphere.

She was never tortured.

9. PW-3 had shown ignorance with regard to incident

whereupon, he was declared hostile and that happens to be the status

of PW-4 as well as PW-5.

10. PW-1 is the father of the victim/deceased. He had

stated that deceased Babita Devi was his daughter. She was married

with Hare Ram Sah about 9-10 years ago. She had begotten a child

who is aged about 6-7 years. He received an information that during

course of cooking, his daughter got burnt and her treatment is going

on at Sadar hospital, Gopalganj whereupon, he had gone to Gopalganj

hospital and had seen her husband as well as her sasuralwala engaged

in providing treatment. During course of treatment, she died. He had

further stated that his son-in-law never tortured her nor ever

demanded dowry whereupon, he was declared hostile and then his

attention was drawn towards his previous statement. During cross-

examination, he had stated that neither his son-in-law nor his family

members ever demanded dowry from his daughter. His daughter had

not complained against her sasuralwala. His daughter never
Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 7

complained that she was being tortured at the end of her husband or

her family members over demand of dowry. None of the accused

persons had tortured her. This happens to be first set of evidence.

11. The second set of evidence is of PW-6, who had

recorded the fard-beyan of the deceased.

12. He had stated that on 11.11.2013, he was officer-

in-charge of Thawe police station, he received information from Sadar

hospital, Gopalganj that one lady of Thawe police station is badly

burnt over which he came to sadar hospital, Gopalganj, inquired, the

name of the victim to be Babita Devi. She was conscious. He

recorded fard-beyan of Babita Devi and read over to Babita Devi who

put her thumb impression, then exhibited the same. During cross-

examination at Para 2, he had stated that he received information from

Sadar hospital, Gopalganj at about 10 A.M. He proceeded therefrom

immediately. He had recorded the same in the station diary. In Para-

3, he had stated that police officials were available in the Sadar

hospital for taking statement. Only for the purpose of taking statement

police officials have been deputed. At Para-4, he had stated that

signature/LT.I of any of the family members of Babita Devi is not

available on the statement. In Para-5, he had denied the suggestion

that he had deposed falsely.

13. From the evidence of PW-1, father of the victim, it
Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 8

is apparent that neither in his examination-in-chief nor during course

of cross-examination, he had stated that on which date he came at the

Sadar hospital. He had stated nor he was cross-examined on the score

that when he came at Sadar hospital, victim was unconscious. Neither

there happens to be examination-in-chief nor cross-examination that

when he came Sadar hospital, had talked with deceased or not. That

means to say, in spite of having status of PW-1, volte face to

prosecution and on account thereof was declared hostile. The defence

could not be able to extract from him with regard to physical, mental

condition of the deceased. In likewise manner, he was not at all cross-

examined whether in his presence police officials had come or not.

14. In the background of aforesaid materials, when the

evidence of PW-6, the police officials who had recorded Ext.1, has

been gone through, it is evident that during cross-examination, the

defence had not challenged that the deceased was not in a sound

mental condition to make statement. Defence could not cross-examine

PW-6 at least to the extent that deceased/injured was unconscious and

so, the Fard-e-beyan happens to be manufactured one. PW-6 was not

at all cross-examined on the score that at very time sasuralwala of

victim was present who was facilitating the treatment of the victim.

15. When PW-6 during course of his examination-in-

chief had deposed that victim was conscious and that assertion has not
Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 9

been challenged during course of cross-examination, then in that

circumstance, the non-examination of the doctor whose presence is on

the fard-beyan will not axe upon authenticity of Exhibit-1 fard-beyan.

When the presence of Ext.1 is found reliable then in that

circumstance, after the death of the deceased on account of burn

injury regarding which the aforesaid fard-beyan depict involvement of

the accused persons including the appellant as being abettor, is to be

treated as a dying-declaration and that being so, rightly been observed

by the learned lower court.

16. In Paras Yadav v. State of Bihar reported in AIR

1999 SC 644, it has been held as under:-

It has been contended by the learned Counsel for
the appellants that the Investigating Officer has not bothered
to record the dying declaration of the deceased nor the dying
declaration is recorded by the Doctor. The Doctor is also not
examined to establish that the deceased was conscious and
in a fit condition to make the statement. It is true that there
is negligence on the part of Investigating Officer. On
occasions, such negligence or ommission may give rise to
reasonable doubt which would obviously go in favour of the
accused. But in the present case, the evidence of prosecution
witnesses clearly establishes beyond reasonable doubt that
the deceased was conscious and he was removed to the
hospital by bus. All the witnesses deposed that the deceased
was in a fit state of health to make the statements on the date
of incident. He expired only after more than 24 hours. No
justifiable reason is pointed out to disbelieve the evidence of
number of witnesses who rushed to the scene of offence at
Ghogha Chowk. Their evidence does not suffer from any
infirmity which would render the dying declarations as
doubtful or unworthy of the evidence. In such a situation,
the lapse on the part of the Investigating Officer should not
be taken in favour of the accused, may be that such lapse is
Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 10

committed designedly or because of negligence. Hence, the
prosecution evidence is required to be examined de hors
such ommissions to find out whether the said evidence is
reliable or not. For this purpose, it would be worthwhile to
quote the following observations of this Court from the case
of Ram Bihari Yadav v. State of Bihar and others, J.T.
(1998) 3 SC 290.

“In such cases, the story of the prosecution will
have to be examined de hors such omissions and
contaminated conduct of the officials otherwise the mischief
which was deliberately done would be perpetuated and
justice would be denied to the complainant party and this
would obviously shake the confidence of the people not
merely in the law enforcing agency but also in the
administration of justice.”

17. Section 498A of the I.P.C is bifurcated in two

parts. The first part is with regard to infliction of cruelty and the

second part, for procurement of dowry. It is not that, in each and

every case, the cruelty should be only on account of demand of

dowry. For better appreciation under Section 498A of the IPC is

coated below.

Section 498A in The Indian Penal Code.

[498A. Husband or relative of husband of a woman
subjecting her to cruelty.–Whoever, being the husband or
the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a
term which may extend to three years and shall also be
liable to fine. Explanation.–For the purpose of this section,
“cruelty” means–

(a) any wilful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or

(b) harassment of the woman where such harassment
is with a view to coercing her or any person related to her to
meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person
related to her to meet such demand.]
Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 11

18. The frequent incident of atrocity upon the woman

at the place of her sasural had given a sound plank to the legislature

to introduce relevant provisions in order to seize the recurrence of

such type of illegality whereunder apart from Section 498A of the

I.P.C, 304B IPC has also been introduced and further in order to

facilitate the court to presume against the accused persons, certain

amendments have also been made in the Evidence Act and Section

113A of the Evidence Act happens to be one of them. The prime

object behind such introduction is not to keep the sasuralwala’s

interest at jeopardize and so, a tenure has been fixed identifying to be

seven years and that happens to be reason behind that in terms of

Section 304B of the I.P.C, the aforesaid period of seven years has

properly been identified and in the aforesaid background, the seven

years period is also identified under Section 113A as well as 113B of

the Evidence Act, but it happens to be confined only in a case which

is based upon or relating to the dowry menace. In the present scenario,

it is not the case relating to torture or abetment or over procurement of

dowry. Deceased had not alleged that on account of demand of dowry,

she was subjected to cruelty. What was the reason for which she was

not allowed to stay at her sasural either happens to be within the

knowledge of Naiharwala of the deceased or the deceased herself or

her sasuralwala. Her sasuralwala kept themselves confined
Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 12

irrespective of the fact that occurrence took place at his place. That

being so, the rigor of time, as prescribed under Section 113 of the

Evidence Act would not apply nor the presumption though rebuttable

in terms of Section 113A of the Evidence Act will come into play. It

happens to be simple case of abetment of suicide.

19. True it is that accused is not under obligation to

explain. It is the prosecution who has to substantiate its case. Once the

prosecution discharged the burden then in that circumstance, onus

shifts upon the adversary, that means to say upon the accused. Dying

declaration was there wherein certain allegations have been attributed

against the accused by the victim, deceased and so, it was incumbent

upon the accused to explain the same by way of challenging the

legality, reliability of the dying declaration as well as disowning their

status to be abettor. Acceptability of dying declaration is based upon

the principle of ” Nemo moriturus praesumitur mentire”, a man will

not meet his maker with a lie in his mouth. That onus as is evident has

not been discharged at the end of the appellant.

20. The learned counsel for the petitioner has relied

upon Ramesh Kumar Vs. State of Chattisgarh reported in (2001) 9

SCC 611. Instigation has been explained. For better appreciation, the

relevant paragraph is quoted below:-

20. Instigation is to goad, urge forward, provoke, incite or
encourage to do “an act”. To satisfy the requirement of
Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 13

instigation though it is not necessary that actual words must
be used to that effect or what constitutes instigation must
necessarily and specifically be suggestive of the
consequence. Yet a reasonable certainty to incite the
consequence must be capable of being spelt out. ……..

21. In State of West Bangal v. Orilal Jaiswal and Anr., [
1994] 1 SCC 73, this Court has cautioned that the Court
should be extremely careful in assessing the facts and
circumstances of each case and the evidence adduced in the
trial for the purpose of finding whether the cruelty meted
out to the victim had in fact induced her to end the life by
committing suicde. If it transpires to the Court that a victim
committing suicide was hypersensitive to ordinary
petulance, discord and differences in domestic life quite
common to the society to which the victim belonged and
such petulance, discord and differences were not expected
to induce a similarly circumstanced individual in a given
society to commit suicide, the conscience of the Court
should not be satisfied for basing a finding that the accused
charged of abetting the offence of suicide should be found

21. Deceased was married. She was married 9-10 years

ago. From the dying declaration it is evident, that on one pretext or

other, she was at her naihar for the last 4 years. About 4 months ago,

she had gone to her sasural. As soon as she stepped down at her

sasural, she began to face the horrifying situation. Lastly, on the

fateful day at about 8 P.M., in the night she was coerced to go outside

whereupon, she lit fire upon herself after sprinkling k-oil.

22. In Indian social cultural environment, the girl after

marriage is expected to stay at her sasural. Her Naiharwala got

relieved after marriage of the girl. Naiharwala feels relaxed and so the
Patna High Court CR. APP (SJ) No.552 of 2015 dt.11-05-2018 14

girl had to stay irrespective of uncordial situation being faced by her

at her Sasural and this happens to be reason behind commission of

suicide when she was forced to face such situation at her Sasural.

23. Having not permitted to stay furthermore at her

Sasural and in the night of winter season, having no ray of hope

ultimately, lost her life. The present case depicts the situation which

the girl has to face at her Sasural, if her presence is not allowed. After

giving the anxious consideration to the facts and circumstances of the

case, I do not see any cogent reason to interfere with the finding

recorded by the learned lower court, that being so, instant appeal lacks

merit and is accordingly, dismissed.

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

cancelled directing him to surrender before learned lower court,

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

which, the learned lower court will be liberty to proceed against the

appellant in accordance with law.

(Aditya Kumar Trivedi, J)

Uploading Date 17.05.2018
Transmission 17.05.2018

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