SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Matak Sah & Anr vs The State Of Bihar on 26 June, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.408 of 2015

Arising Out of PS. Case No. -167 Year- 2010 Thana -SIMRI District- BUXAR

1. Matak Sah S/o Late Kanhaiya Sah

2. Chanda Devi @ Chandrawati Devi S/o Matak Sah
Both R/o Village Badka Rajpur, P.S. Simri, District Buxar.

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

Appearance:

For the Appellant/s : Mr. Arun Kumar Tripathi, Amicus Curiae
For the Respondent/s : Mrs. Abha Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 26-06-2018

As the learned counsel for the appellant failed to

appear on account thereof, Mr. Arun Kumar Tripathi, learned

advocate has been requested to assist the court as an Amicus

Curiae.

2. Appellant, Matak Sah and Chanda Devi @ Chandrawati

Devi by the judgment of conviction dated 26.05.2015 found guilty for

the offences punishable under Section 304B IPC as well as 201 of

the IPC and vide order of sentence dated 29.05.2015 sentence d to

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

Rs.5000/- in default thereof to undergo S.I. for six months,

additionally, to undergo R.I. for two years, respectively with a further

direction to run the sentences concurrently by the Additional

Sessions Judge, IIIrd, Buxar in Sessions Trial No.131/2011.

3. PW.3, Shanti Kunwar filed written report on

22.09.2010 disclosing therein that her daughter Kanchan Devi was

married with Raju Gupta in the year 2003. Her daughter was

issueless. At the time of marriage, she had gifted the articles, cash
Patna High Court CR. APP (SJ) No.408 of 2015 2

according to her means. While her daughter was staying at her

Sasural, her father-in-law, mother-in-law began to demand money

and for that, she was being coaxed. Her daughter used to inform her

whenever she came at her place and sometimes, over mobile. On

account of poverty she was unable to fulfill their demand whereupon

her mother-in-law, father-in-law began to abuse as well as,

sometimes causing physical assault. In the evening of 21.09.2010

her daughter had informed that she be called from there otherwise

she will be murdered by her father-in-law, mother-in-law

whereupon, her son rushed to the place of her sister. After arrival,

he had not found his sister or her in-laws. On query, he came to

know that his sister has been murdered and her dead body has been

disposed of. It has also been disclosed that for the last two months

her son-in-law Raju Gupta was staying at Surat where he was

engaged in a private firm wherefrom, he used to abuse on account of

non-fulfillment of demand of dowry.

4. After registration of Simri (TRHOP) P.S. Case

No.167/2010 investigation commenced and concluded by way of

submission of charge sheet, facilitating the trial, meeting with the

ultimate result, subject matter of instant appeal.

5. 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 further been pleaded that

the deceased died of natural death whereupon prosecution party was

informed, Raju Gupta brother of deceased came, participated in the

funeral and then thereafter, as they have failed to satisfy the greed of

the prosecution party whereupon this false case has been filed.
Patna High Court CR. APP (SJ) No.408 of 2015 3

However, nothing has been adduced in defence.

6. In order to substantiate its case, prosecution had

examined altogether seven PWs, PW.1-Gorakh Paneri, PW.2-Dadan

Kanu, PW.3-Shanti Devi, PW.4-Hridaya Nath Yadav, PW.5-Vijay

Shankar Sah, PW.6-Bhagelu Yadav and PW.7-Jani Lal Ravidas. Side

by side had also exhibited Ext.1-Signature of PW.4 over seizure list,

Ext.2-Formal FIR, Ext.3-Endorsement over written report. As stated

above, nothing has been adduced in defence.

7. Learned amicus curiae while assailing the judgment of

conviction and sentence has submitted that virtually this case

happens to be of no evidence and so, the learned lower court should

have acquitted the appellants. Magnifying his submission, the

learned amicus curiae has submitted that PW.1, PW.2, PW.5, PW.6

have not supported the case of the prosecution and so, they all were

declared hostile. Even thereafter, prosecution could not be able to

procure any substantive material. PW.4 is the seizure list witness

who during course of examination had admitted his presence paper

was blank over seizure list but disclosed that at the time of putting

signature. So, from the evidence of PW.4 prosecution could not be

able to gain anything. Now remains the evidence of PW.3, informant.

From her evidence, it is evident that the same suffers from

vagueness without having any specific incident having been at her

end, if any committed during such long tenure of seven years or

more than that nor, the Investigating Officer on that very score been

able to collect corroborative evidence. That being so, the demand of

dowry, torturing the deceased soon before her death by the husband

or relative of the husband for the fulfillment of demand of dowry is
Patna High Court CR. APP (SJ) No.408 of 2015 4

not at all found duly substantiated.

8. Furthermore, it has been submitted that the written

report as well as during course of evidence PW.3 had stated that she

was being informed by the deceased on mobile but, neither during

course of investigation she produced nor disclosed her mobile

number as well as mobile number of her daughter, son-in-law

whereupon, it could have been traced out by call details that at least

victim was in regular contact with her as well as on 21.09.2010 she

had informed to her whereupon Raju had gone to the place of the

accused persons. Therefore, the aforesaid infirmities persisting in the

prosecution case happen to be sufficient to annul the finding

recorded by the learned lower court. Consequent thereupon, appeal

is fit to be allowed.

9. On the other hand, the learned Additional Public

Prosecutor while controverting the submission having been made on

behalf of appellants has submitted that the present prosecution has

fallen victim of apathy of the court in the background of the fact one

of the major ingredients is found hanging under midst of controversy

as, marriage has been shown in the year 2003 while the occurrence

is of month of September, 2010, so, with all expectation, it must

have cross the barrier of seven years whereupon, the charge would

have been framed under Section 302 IPC along with Section 498A,

201 of the IPC instead of 304B of the IPC. Apart from this, it has also

been submitted that Hon’ble Apex Court had, in the Rajbeer case as

well as at subsequent stages also observed that whenever charge is

being framed under Section 304B of the IPC there should be always

a charge under Section 302 of the IPC. Had there been proper
Patna High Court CR. APP (SJ) No.408 of 2015 5

charge, then in that circumstance, the controversy persisting on the

record would not have been taken a ground on behalf of the

appellant. Side by side, the learned lower court would have done

complete justice and in likewise manner, the appellant would have

been under obligation to explain the death of deceased Kanchan Devi

who, admittedly died at their place. That being so, it happens to be a

fit case wherein matter be remitted back to the learned lower court

for retrial after setting aside the judgment impugned.

10. From perusal of the record, it is evident that out of

seven witnesses examined on behalf of prosecution, PW.1, PW.2,

PW.5 and PW.6 have gone volte-face to the prosecution, while PW.4

though stood as a seizure list witness but prosecution had failed to

explicit from his mouth with regard to nature of recovery and for

that, the concerned seizure list was prepared, which ought to have

been though is found from the evidence of PW.7. That being so, the

prosecution rest upon the evidence of two PWs that means to say

informant PW.3 and the Investigating Officer PW.7. That means to

say mere examination of single witness without having corroboration

from other witnesses. It is Section 134 of the Evidence Act which

rules out requirement of number of witness rather evidence of single

witness if, inspires confidence could be accepted and form basis for

conviction and sentences. More recently in Kuna @ Sanjaya Behera

vs The State Of Odisha reported in (2018) 1 SCC 296 at para-19,

it has been held:-

―19. That conviction can be based on a
testimony of a single eye witness if he or she
passes the test of reliability and that it is not
the number of witnesses but the quality of
evidence that is important, have been
propounded consistently in Anil Phukhan
(1993) 3 SCC 282, Ramji Surya (1983) 3 SCC
Patna High Court CR. APP (SJ) No.408 of 2015 6

629, Patnam Anandam (2005) 9 SCC 237 and
Gulam Sarbar (2014) 3 SCC 401 with the
apparent emphasis that evidence must be
weighed and not counted, decisive test being
whether it has a ring of truth and it is cogent,
credible, trustworthy or otherwise‖

11. In case, a lady dies at her Sasural within seven years of

marriage by burn or bodily injury or otherwise than normal

circumstance and during intervening period, there happens to be an

allegation of demand of dowry as well as torture on pretext thereof, is

liable to be proceeded under the garb of dowry death punishable

under Section 304B of the IPC and for that, the necessary

requirements are (a) the death should be within seven years of

marriage, (b) the death should be on account of burn or bodily injury

or otherwise than normal circumstance, (c) soon before her death

she has been tortured with regard to demand of dowry and (d) by her

husband or relative of the husband, which the prosecution is bound

to substantiate.

In case, prosecution succeeds in proving the aforesaid

ingredients then, in that circumstance, it will be deemed to be a

dowry death and then thereafter, the onus shift upon the accused to

explain as provided under Section 113B of the Evidence Act. More

recently in Baijnath and Ors vs State of M.P reported in (2017) 1

SCC 101, it has been held:-

―24. The evidence on record and the
competing arguments have received our
required attention. As the prosecution is on
the charge of the offences envisaged in
Sections 304B and 498A of the Code, the
provisions for reference are extracted
hereunder:

―304B. Dowry death.-(1) Where the death
of a woman is caused by any burns or bodily
injury or occurs otherwise than under normal
Patna High Court CR. APP (SJ) No.408 of 2015 7

circumstances within se ven years of her
marriage and it is shown that soon before her
death she was subjected to cruelty or
harassment by her husband or any relative of
her husband for, or in connection with, any
demand for dowry, such death shall be called
―dowry death‖, and such husband or relative
shall be deemed to have caused her death.

Explanation. – For the purpose of this sub-
section, ―dowry‖ shall have the same meaning
as in section 2 of the Dowry Prohibition Act,
1961 (28 of 1961).

(2) Whoever commits dowry death shall be
punished with imprisonment for a term
which shall not be less than seven years but
which may extend to imprisonment for life.

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 willful 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.

25. Whereas in the offence of dowry death
defined by Section 304B of the Code, the
ingredients thereof are:

(i) death of the woman concerned is by
any burns or bodily injury or by any cause
other than in normal circumstances and

(ii) is within seven years of her
marriage and

(iii) that soon before her death, she was
subjected to cruelty or harassment by her
husband or any relative of the husband
for, or in connection with, any demand for
Patna High Court CR. APP (SJ) No.408 of 2015 8

dowry.

The offence under Section 498A of the
Code is attracted qua the husband or his
relative if she is subjected to cruelty. The
explanation to this Section exposits ―cruelty‖
as:

(i) 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) or

(ii) 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.

26. Patently thus, cruelty or harassment
of the lady by her husband or his relative for
or in connection with any demand for any
property or valuable security as a demand for
dowry or in connection therewith is the
common constituent of both the offences.

27. The expression ―dowry‖ is ordained to
have the same meaning as in Section 2 of the
Dowry Prohibition Act, 1961. The expression
―cruelty‖, as explained, contains in its
expanse, apart from the conduct of the
tormentor, the consequences precipitated
thereby qua the lady subjected thereto. Be
that as it may, cruelty or harassment by the
husband or any relative of his for or in
connection with any demand of dowry to
reiterate is the gravamen of the two offences.

28. Section 113B of the Act enjoins a
statutory presumption as to dowry death in
the following terms:

“113-B. Presumption as to dowry
death. – When the question is whether a
person has committed the dowry death of a
woman and it is shown that soon before her
death such woman has been subjected by
such person to cruelty or harassment for, or
in connection with, any demand for dowry,
the Court shall presume that such person
had caused the dowry death.

Explanation. – For the purpose of this
section, ―dowry death‖ shall have the same
meaning as in section 304B of the Indian
Patna High Court CR. APP (SJ) No.408 of 2015 9

Penal Code (45 of 1860)‖

29. Noticeably this presumption as well is
founded on the proof of cruelty or
harassment of the woman dead for or in
connection with any demand for dowry by the
person charged with the offence. The
presumption as to dowry death thus would
get activated only upon the proof of the fact
that the deceased lady had been subjected to
cruelty or harassment for or in connection
with any demand for dowry by the accused
and that too in the reasonable contiguity of
death. Such a proof is thus the legislatively
mandated prerequisite to invoke the
otherwise statutorily ordained presumption of
commission of the offence of dowry death by
the person charged therewith.

30. A conjoint reading of these three
provisions, thus predicate the burden of the
prosecution to unassailably substantiate the
ingredients of the two offences by direct and
convincing evidence so as to avail the
presumption engrafted in Section 113B of the
Act against the accused. Proof of cruelty or
harassment by the husband or her relative or
the person charged is thus the sine qua non
to inspirit the statutory presumption, to draw
the person charged within the coils thereof. If
the prosecution fails to demonstrate by
cogent coherent and persuasive evidence to
prove such fact, the person accused of either
of the above referred offences cannot be held
guilty by taking refuge only of the
presumption to cover up the shortfall in
proof.

31. The legislative primature of relieving
the prosecution of the rigour of the proof of
the often practically inaccessible recesses of
life within the guarded confines of a
matrimonial home and of replenishing the
consequential void, by according a
presumption against the person charged,
cannot be overeased to gloss-over and
condone its failure to prove credibly, the
basic facts enumerated in the Sections
involved, lest justice is the casualty.

32. This Court while often dwelling on the
scope and purport of Section 304B of the
Code and Section 113B of the Act have
propounded that the presumption is
contingent on the fact that the prosecution
first spell out the ingredients of the offence of
Section 304B as in Shindo Alias Sawinder
Kaur and another Vs. State of Punjab –

Patna High Court CR. APP (SJ) No.408 of 2015 10

(2011) 11 SCC 517 and echoed in Rajeev
Kumar Vs. State of Haryana – (2013) 16 SCC

640. In the latter pronouncement, this Court
propounded that one of the essential
ingredients of dowry death under Section
304B of the Code is that the accused must
have subjected the woman to cruelty in
connection with demand for dowry soon
before her death and that this ingredient has
to be proved by the prosecution beyond
reasonable doubt and only then the Court
will presume that the accused has committed
the offence of dowry death under Section
113B of the Act. It referred to with approval,
the earlier decision of this Court in K. Prema
S. Rao Vs. Yadla Srinivasa Rao – (2003) 1
SCC 217 to the effect that to attract the
provision of Section 304B of the Code, 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 and
harassment ―in connection with the demand
for dowry‖

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

only PW.3 is the material witness in order to substantiate the

allegation. She had deposed that Kanchan was her daughter whose

marriage was solemnized about eight years ago with Raju Gupta. At

the time of marriage, she had gifted according to her means.

Kanchan was issueless. After sometime while Kanchan was staying

at her Sasural her father-in-law Bhagat Sah and mother-in-law

Chanda Devi began to demand money in lieu of dowry which, her

daughter Kanchan had informed over phone. She had accepted the

demand but, on account of non-fulfillment thereof, Kanchan was

abused as well as physically tortured. Before her death she had

come to her place on the eve of Vishwakarma Pooja and returned

back on the next day. Immediately thereafter she informed that you

should come and take her away otherwise, they are bent upon to

murder her whereupon, she sent her son Chhotu Kumar. He had

gone there but, had not found her. Her sister happens to be Gotani
Patna High Court CR. APP (SJ) No.408 of 2015 11

of her daughter whom she informed whereupon she disclosed that

she has been burnt. Then she rushed and till then, her dead body

was thrown away. Her son-in-law, who was at Surat, had telephoned

her before the occurrence and had demanded dowry and for that, he

used to talk in filthy language. Then thereafter, she informed the

police. Identified the accused. During cross-examination at para-7

she had stated that she had only one daughter and a son namely

Kanchan (deceased) as well as Chhotu. In para-11, she had stated

that she had made complain before the police on the next day of the

occurrence. In para-12, she had stated that Chhotu Kumar had gone

to the place of deceased on the date of occurrence itself. In para-13,

she had deposed that Chhotu had participated in the funeral of

Kanchan. In para-15, she had stated that she had not made

complaint against Bhagat Singh and Chanda Devi before institution

of this case to any authority. In para-16, she had stated that she

used to visit at the place of Kanchan and in likewise manner,

Kanchan used to visit at her place. Then had denied the suggestion.

At para-18 had stated that she had not informed to anybody with

regard to the disclosure made by Kanchan when she had gone to her

Sasural on the next day of Vishwakarma Pooja asking her to take

her aback otherwise she will be murdered. In para-19, she had

stated that the house of her sister happens to be adjacent to her

daughter. In para-19, she had stated that she had not stated before

the police that her husband was also demanding the dowry. Then

had denied the suggestion that Chhotu and deceased quarreled

whereupon, she (deceased) committed suicide and after funeral, this

false case has been filed with ulterior motive.
Patna High Court CR. APP (SJ) No.408 of 2015 12

13. PW.7 is the Investigating Officer had deposed that on

being entrusted with the investigation, he had gone to the place of

occurrence. He had searched out informant for further statement but

failed (rightly been as was resident of different village). Inspected the

place of occurrence which happens to be the tiled roof building of the

accused having eastern front. He had found one tine box, half burnt,

two sound box half burnt, one quilt half burnt, one bed half burnt,

one sari, one shawl half burnt which were seized and for that in

presence of Mahendra and Vidyanand Yadav seizure list was

prepared. Exhibited all the relevant documents including the seizure

list. Recorded statement of witnesses and then, submitted charge

sheet. During cross-examination at para-10 the defence had drawn

statement of a witness Vijay Shankar Kanu (PW.5) having been

declared hostile.

14. After analyzing the evidence available on the record, as

discussed hereinabove, it is evident that two kinds of evidences are

there, in first one, sole testimony of PW.3 and the other one, co-

village of the appellant being PW.1, PW.2, PW.5 and PW.6 completely

diminishing the prosecution case. When the evidence of PW.3 has

been gone through, it is evident that she under para-13 of the cross-

examination had admitted that Raju, her son had participated in the

funeral. Had there been some kind of activity adverse to the interest

of the deceased, then in that circumstance, instead of participating

in the funeral, the police would have been informed by the Raju. It is

also evident from her evidence that she had stated that shen she had

gone to the place of her daughter, her dead body was already

disposed of is not at all found reliable in the background of
Patna High Court CR. APP (SJ) No.408 of 2015 13

disclosure having made under para-13, as discussed hereinabove.

Furthermore, it is also evident from deposition of PW.3 that deceased

frequently came to her place alone, then, in that circumstance why

not she came out on fateful day, after being threats. Not only this,

there also happens to be disclosure at the end of PW.3 that she was

in contact with deceased over mobile but neither during investigation

nor during course of evidence mobile number was disclosed.

15. So, apart from other improbability coming out from the

evidence of PW.3, it is apparent, after overall analysis of the evidence

of PW.3 that the allegation whatever been attributed at her end is

not at all found free from suspicion. Consequent thereupon, the

judgment of conviction and sentence recorded by the learned lower

court is set aside. Appeal is allowed. Both the appellants are on bail,

hence are discharged from its liabilities. First and last page of

judgment be handed over to the learned amicus curiae for the

needful.

(Aditya Kumar Trivedi, J.)

Prakash Narayan

AFR/NAFR A.F.R.
CAV DATE 25.04.2018
Uploading Date 26.06.2018
Transmission 26.06.2018
Date

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation