HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 31.05.2019

Delivered on 10.07.2019

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 27556 of 2018

Applicant :- Pushkar Katiyar

Opposite Party :- State Of U.P.

Counsel for Applicant :- S.M.Ayaz Ali

Counsel for Opposite Party :- G.A.,Babu Lal Ram

Hon’ble Siddharth,J.

Heard Sri O. P. Singh, learned Senior Advocate, assisted by Sri S. M. Ayaz Ali, learned counsel for the applicant, Sri Babu Lal Ram, learned counsel for the informant and Sri Om Prakash Mishra, learned AGA for the State.

The brief facts of the case are:

As per prosecution case – the complainant, Swatantra Katiyar, got an FIR lodged at P.S. Kalyanpur, Kanpur Nagar, on 16.09.2017 21.30 hrs against the accused applicant, Pushkar Katiyar, husband of the deceased Preeti Katiyar, along with the other co-accuseds alleging therein that he got the marriage of his sister, Preeti, solemnized with the accused-applicant, Pushkar Katiyar (Sonu), on 23.11.2016, according to hindu marriage rites and customs. After her Bedai, the in-laws of his sister used to torture his sister by taunting her for bringing insufficient dowry from her parental house and used to demand one Swift Car and Rupees 5 lacs in cash as additional dowry. The husband, Pushkar Katiyar; father-in-law, Anil Katiyar; mother-in-law, Shakuntala Katiyar and younger brother, Nivesh Katiyar (Monu), all tortured his sister. His sister told him about these facts on phone and he consoled her saying that he would talk to them and all the dispute would be settled. But on 16.09.2017, in the morning at about 7-8 a.m., his elder sister talked on phone and informed that due to non-fulfilment of demand of additional dowry, her husband, father-in-law, mother-in-law and Dewar are beating her and she asked her to save her by coming to Kanpur. Before he reached there due to demand of additional dowry, his sister was murdered by the aforesaid persons. In the Postmortem Report of the deceased, Preeti katiyar, injuries found were – One Ligature Mark- 29 cm. x 2 cm., around chin, 5 cm., below right ear and 3 cm. below left ear. On dissection white parchment like glistering was found present under ligature mark (hyoid bone intact) by the doctor on the body of the deceased and cause of death of the deceased was opined by the doctor to be Asphyxia, due to ante mortem hanging. It was also opined by the doctor that the injury was caused by hard and blunt object.

Learned Senior Advocate has submitted that this is a case of hanging as per post mortem report and not of strangulation and the deceased committed suicide and was not done to death by strangulation. The deceased was under depression due to the fact that her mother was suffering from paralysis and all her jewelry and fixed deposits were taken by the informant, brother of the deceased, for the purpose of treatment of the mother of the deceased. Due to this reason she hanged himself to death. There was no demand of dowry by the applicant or his family members and such allegations have been falsely made in the first information report when there was no material in the form of some letter or statement of any independent witnesses to prove such a demand.

Per contra, Sri Om Prakash Mishra, learned AGA for the State, has vehemently opposed the bail application on the ground that Section 113-B of the Evidence Act, 1872 clearly provides that when the death of a woman is caused soon after her marriage and it is shown that soon before her death she was subjected to cruelty and harassment, in connection with any demand of dowry, Court shall presume death of such person as dowry death. He has further submitted that young woman aged about 26 years had died and the husband being direct beneficiary can be inferred to have caused such miseries in the life of his wife that she was compelled to commit suicide. It was the duty of the applicant, husband of the deceased, to have protected life of his wife, whom he had brought home from her parents house after marriage. The explanation that the mother of the deceased suffered from paralysis and she was greatly disturbed because her jewelry and FDR’s were taken away by the informant, her brother, for treatment of the mother of the deceased is not supported by any material. Informant has not proved by bringing on record any details of jewelry and details of the FDR’s along with their numbers and bank name and date and a false defence is being taken before the Court, not supported by any particulars and it cannot be accepted. Burden of proof was on the applicant to show that soon before the death of the deceased she was not subjected to cruelty or harassment for, or in connection with demand of dowry. Unless and until this was proved by the applicant the Court shall presume that the applicant has caused dowry death of his deceased wife and she was subjected to cruelty for, or in connection with any demand of dowry.

The argument of the learned Senior Counsel for the applicant is that the opinion of the Doctor in the post mortem report proved that it was a case of hanging and not of strangulation, deserves consideration. Learned counsel for the applicant has pointed out that there is oblique ligature mark 29 cm x 2 cm around neck with a gap of 6 cm, left side back of neck distance 4 cm below chin, 5 cm below right ear, 3 cm below left ear, white parchment like glistering was present under ligature mark and hyoid bone was found intact by the doctor. He has submitted that in the case of hanging hyoid bone fracture is found and relying upon the Modi’s Medical Jurisprudence and Toxicology, he has submitted that in Clause (9) of the differences between hanging and strangulation Modi has opined that where, white, hard and glistering are found in subcutaneous tissues under the ligature mark, it is a case of hanging. In case of strangulation there is no such mark found rather subcutaneous tissues under the mark get ecchymosed. He has further stated that hyoid bone was found intact in the present case, which is broken in the case of strangulation on account of pressure on the neck.

The argument raised is without merit. The Apex Court in the case of Ravirala Laxmhina Vs. State of Andhra Pradesh (2013)9 SCC 283 has held that the fracture of hyoid bone is not always found in the case of strangulation. The relevant consideration are as follows :

12. So far as the medical evidence is concerned, the issue involved herein is no more res integra.

This Court dealt with the issue in Ponnusamy v. State of Tamil Nadu, AIR 2008 SC 2110, and observed as under:

“20-21. It is true that the autopsy surgeon, PW 17, did not find any fracture on the hyoid bone. Existence of such a fracture leads to a conclusive proof of strangulation but absence thereof does not prove contra. In Taylor’s Principles and Practice of Medical Jurisprudence, 13th Edn., pp. 307-08, it is stated: ”The hyoid bone is ”U’ shaped and composed of five parts: the body, two greater and two lesser horns. It is relatively protected, lying at the root of the tongue where the body is difficult to feel. The greater horn, which can be felt more easily, lies behind the front part of the strip muscles (sternomastoid), 3 cm below the angle of the lower jaw and 1.5 cm from the midline. The bone ossifies from six centres, a pair for the body and one for each horn. The greater horns are, in early life, connected to the body by cartilage but after middle life they are usually united by bone. The lesser horns are situated close to the junction of the greater horns in the body. They are connected to the body of the bone by fibrous tissue and occasionally to the greater horns by synovial joints which usually persist throughout life but occasionally become ankylosed.

Our own findings suggest that although the hardening of the bone is related to age there can be considerable variation and elderly people sometimes show only slight ossification. From the above consideration of the anatomy it will be appreciated that while injuries to the body are unlikely, a grip high up on the neck may readily produce fractures of the greater horns. Sometimes it would appear that the local pressure from the thumb causes a fracture on one side only. While the amount of force in manual strangulation would often appear to be greatly in excess of that required to cause death, the application of such force, as evidenced by extensive external and soft tissue injuries, make it unusual to find fractures of the hyoid bone in a person under the age of 40 years.

As stated, even in older people in which ossification is incomplete, considerable violence may leave this bone intact. This view is confirmed by Green. He gives interesting figures: in 34 cases of manual strangulation the hyoid was fractured in 12 (35%) as compared with the classic paper of Gonzales who reported four fractures in 24 cases. The figures in strangulation by ligature show that the percentage of hyoid fractures was 13. Our own figures are similar to those of Green.’

22. In Journal of Forensic Sciences, Vol. 41 under the title — Fracture of the Hyoid Bone in Strangulation: Comparison of Fractured and Unfractured Hyoids from Victims of Strangulation, it is stated:

”The hyoid is the U-shaped bone of the neck that is fractured in one-third of all homicides by strangulation. On this basis, post-mortem detection of hyoid fracture is relevant to the diagnosis of strangulation. However, since many cases lack a hyoid fracture, the absence of this finding does not exclude strangulation as a cause of death. The reasons why some hyoids fracture and others do not may relate to the nature and magnitude of force applied to the neck, age of the victim, nature of the instrument (ligature or hands) used to strangle, and intrinsic anatomic features of the hyoid bone. We compared the case profiles and xeroradiographic appearance of the hyoids of 20 victims of homicidal strangulation with and without hyoid fracture (n 10, each). The fractured hyoids occurred in older victims of strangulation (39 ± 14 years) when compared to the victims with unfractured hyoids (30 ± 10 years). The age dependency of hyoid fracture correlated with the degree of ossification or fusion of the hyoid synchondroses. The hyoid was fused in older victims of strangulation (41 ± 12 years) whereas the unfused hyoids were found in the younger victims (28 ± 10 years). In addition, the hyoid bone was ossified or fused in 70% of all fractured hyoids, but, only 30% of the unfractured hyoids were fused. The shape of the hyoid bone was also found to differentiate fractured and unfractured hyoids. Fractured hyoids were longer in the anterior-posterior plane and were more steeply sloping when compared with unfractured hyoids. These data indicate that hyoids of strangulation victims, with and without fracture, are distinguished by various indices of shape and rigidity. On this basis, it may be possible to explain why some victims of strangulation do not have fractured hyoid bones.’

23. Mr Rangaramanujam, however, relied upon Modi’s Medical Jurisprudence and Toxicology, 23rd Edn. at p. 584 wherein a difference between hanging and strangulation has been stated. Our attention in this connection has been drawn to Point 12 which reads as under:

|Hanging |Strangulation | |Fracture of the larynx |Fracture of the larynx and| |and trachea- |trachea – | | | | |Very rare and that too |Often found also hyoid | |in judicial hanging |bone. |

24. A bare perusal of the opinion of the learned author by itself does not lead to the conclusion that fracture of hyoid bone, is a must in all the cases.”

13. Dr. Aman Hingorani has submitted that in the present case, the post mortem report is completely silent about the ligature mark and its characteristics, as a result of which it cannot be said that the present case was one of homicidal strangulation/throttling as alleged by the prosecution. Dr. Hingorani has placed a very heavy reliance on Modi’s Medical Jurisprudence and Toxicology wherein after emphasizing that “hyoid bone and superior cornuae of the thyroid cartilage are not, as a rule, fractured by any other means other than by strangulation”, has given the differences between hanging and strangulation in tabulated form, two of them being as follows:

|Hanging |Strangulation |

|Ligature Mark – Oblique,|Ligature Mark – |

|non-continuous placed |Horizontal or transverse | |high up in the neck |continuous, round the | |between the chin and the|neck, low down in the neck| |larynx, the base of the |below the thyroid, the | |groove of furrow being |base of the groove or | |hard, yellow and |furrow being soft and | |parchment like |reddish | | | | |Scratches, abrasions and|Scratches, abrasions and | |bruises on the face, |bruises on the face, neck | |neck and other parts of |and other parts of the | |the body – |body – | |Usually not present |Usually not present |

The argument of the learned AGA that burden of proving the death of wife of applicant was on the applicant and therefore, he has not been able to dispel the presumption under Section 113-B of the Indian Evidence Act, 1872 deserves consideration.

Section 113B, Indian Evidence Act,1872 and the Section 304B, Indian Penal Code has been added by the Dowry Prohibition (Amendment) Act No.43 of 1986 which was with effect from 19th November 1986. This was done in order to solve the increasing problem of dowry death. The word dowry death has been defined in 304B Indian Penal Code and the term dowry has been defined in Section 2 of the Dowry Prohibition Act 1961.

Section 113B states that:

“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 purposes of this Section ‘dowry death’ shall have the same meaning as in Section 304-B, Indian Penal Code,1860

Section 304B of the Indian Penal Code states that

“Dowry death – (1) where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven 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, Latest Laws. com 2 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”.

The definition of dowry as stated in Section 2, Dowry Prohibition Act 1961 is-

“Dowry means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by parents of either party to a marriage or by any other to either party to the marriage or to any person; at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of person to whom the Muslim Personal Law (Shariat) applies.

Explanation. I. Omitted.

Explanation. II. The expression ‘valuable security’ has the same meaning as in s 30 of Indian Penal Code 1860 (45 of 1860).”

In the case of Keshab Chandra Pandey v. State, (1995) Cri LJ 174 (Ori), the Court held that presumption under Sec 113B of the Indian Evidence Act shall be raised only on the proof of the following essentials:

“(i) Whether the accused has committed the dowry death of a woman. So the presumption can be raised if the accused is being tried for an offence under s 304B, Indian Penal Code.

(ii) The woman was subjected to cruelty or harassment by her husband or his relatives.

(iii) Such cruelty or harassment was for or in connection with the any demand for dowry.

(iv) Such cruelty or harassment was soon before her death”.

Nature of Presumption

Section 113B uses the word “shall” and not ‘may’ so it is a presumption of law. On proof of the essentials mentioned above, it becomes obligatory on the court to raise a presumption that the accused caused the “dowry death”. The court has no discretion to draw the presumption under this Section if the essential ingredients are proved then they are bound to draw this presumption under Sec 113B of the Indian Evidence Act.

The legislature has made this presumption a mandatory presumption of law, of course, rebuttable, though this may sound to be a violent departure from the accepted norms of criminal law. The legislature thought that the presumption under Section 113B should be a mandatory presumption if the evil of dowry deaths is to be eradicated from the roots of our society.

If it is proved that soon before her death, the victim was subjected to cruelty or harassment in connection of a dowry demand, then the presumption under s 113B can be raised. If the prosecution has failed to prove the case under Sec 304B, IPC, even then, no presumption can be raised under Sec. 113B of the Indian Evidence Act. So 304B is an integral part of Sec 113B of the Indian Evidence Act. Cruelty need not be physical. Even mental torture in a given case would be a case of cruelty or harassment under 304B and 498A.

In Nem Chand v State of Haryana, (1994) 3 Crimes 608 (SC), the parties were married on 24-5-1962. After staying at the matrimonial home for two months, she returned to her parents’ house and told them that her husband wanted a television set and a fridge. Her father gave her a sum of Rs. 6,000 and she left for her matrimonial home. Her husband again demanded a sum of Rs. 25,000 for purchasing a plot. There after the husband took his wife to her parents’ home saying that he would not take her back unless a sum of Rs. 25,000 was paid to him. After one year he took her back but he did not give up his demand for Rs. 25,000. Soon thereafter she left for her parents home and came back with a sum of Rs. 15,000 with a promised that the rest of the amount would be would be paid later on. She died of strangulation in her husband’s home. The trial court found accused guilty. Supreme Court held that accused should be convicted.

In Shanti v State of Haryana, AIR 1991 SC 1226, where the death took place within seven years of marriage, the in-laws of the deceased did not inform deceased’s parents about the death but hurriedly cremated the deceased. The prosecution succeeded in establishing cruel treatment towards the victim. The death could not be said to be natural death and the presumption under s 113B of the Evidence Act was attracted. The Supreme Court held that,

“The cruelty or harassment should be met to the victim soon before the victim’s death to bring under this presumption. In a case , there was dispute between parties regarding dowry and that wife, was sent back to her parent’s home and was again taken back to her matrimonial home after a ‘panchayat’ which was held to resolve the dispute. This event happened 10-15 days prior to the occurrence of the incident as the death of the deceased. However, there was no evidence, which indicate that she was treated with cruelty or harassed with the demand for dowry during the period of between her taken back home to and her tragic end. In these circumstances, the presumption for dowry death cannot be raised. The court held that the, presumption of 113B could not be brought in”.

In another case Mangal Ram Another v State of Madhya Pradesh, 1999 Cri LJ 4342, the wife committed suicide within five years of her marriage. She was living with her parents for about two-three years. Within one month of returning to her matrimonial home, she jumped in to a well, and committed suicide. Harassment by husband and her in-laws during this month has not been proved beyond reasonable doubt. In these circumstances, the presumption cannot be raised against the husband.

In Pawan Kumar v State of Haryana, AIR 1998 SC 958, the deceased and the appellant were married in 1985. After a few days of the marriage there was demand of scooter and fridge. On account of not satisfying the demand, she was repeatedly taunted, maltreated and mentally tortured. In April 1987 when deceased’s maternal uncle died, she along with her husband visited Delhi to offer condolences. And by evening on the same day instead of returning to her husband’s place came to her sister’s house. She remained there for a few days. 3 AIR 1991 SC 1226 4 1999 CriLJ 4342 5 AIR 1998 SC 958 LatestLaws.com 5 When her husband came to take her back she was reluctant but her sister brought her down and sent her with her husband. She went with the husband but with the last painful words that’ it would be difficult now to see her face in the future’. On the very next day, she committed suicide.

While examining the constituents of dowry death Supreme Court held that:

“(a) when the death of a woman is caused by any burns or bodily injury; or

(b) occurs otherwise than under normal circumstances;

(c) and the aforesaid two facts spring within seven years of girl’s marriage;

(d) and soon before her death, she was subjected to cruelty or harassment by her husband or his relative.

If these conditions exist, it would constitute a dowry death; and the husband and/or his relatives shall be deemed to have caused her death. In the present case, it is not in dispute that the deceased Urmil died of burn injuries, that she died otherwise than under normal circumstances, and that the death was within a period of 7 years of marriage. The only consideration has to be: whether she was subjected to any cruelty or harassment by the appellants soon before her death, and whether the same was for or in connection with any demand of dowry.”

In one of its recent judgments, in Baijnath Others v. State of Madhya Pradesh6 , Supreme Court expounded that,

“One of the essential ingredients of dowry death under Section 304B of the Penal 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 Indian Evidence Act”.

The legislative intent is clear the provision has been made to curb the menace of dowry deaths, etc., with a firm hand. It must be remembered that since crimes are generally committed in privacy of residential houses and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing Section 113-B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundation facts are established and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life. When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with, any demand for dowry. Section 113-B, Evidence Act provides that the court shall presume that such person had caused the dowry death.

From the above consideration, it is clear that the deceased, wife of the applicant, appears to have committed suicide by hanging herself from the roof with the help of dupatta but the applicant has not been able to prove that the hanging of his wife was not account of any demand of dowry and there was any other reason which compelled her to take such an extreme step of hanging herself to death. The argument of the learned AGA is well founded, so far his submission that the applicant was responsible for making the life of his wife so miserable that she was compelled to commit suicide. The Apex Court in the case of Surendra Singh Vs. State of Punjab, 1999(1) Crimes 4296 and in case of G.V. Siddoramesh Vs. State of Karnataka, (2010)3 SCC 152 has held that the defence should show that soon before death of a woman she was not subjected to cruelty or harassment for, or in connection with demand of dowry, then only presumption can be drawn that person has committed dowry death of a woman.

In present case the prosecution has recorded the statements of the informant and also the elder sister of the deceased who have stated that there was demand of one Swift Car and Rs.5 lakhs from the applicant and his family members as dowry and the deceased had made a call on 16.09.2017 informing about this fact. The informant has also admitted that such a call was made by the deceased on the phone of his elder sister. Death of the deceased took place on the same date. Therefore, the burden was on the defence to prove that no such demand of dowry was made since the death of the deceased took place within one year of her marriage with the applicant.

Considering all the above submissions, facts and circumstances of the case and the gravity of offence, without expressing any opinion on merits of this case, the bail application is rejected.

The Trial Court is directed to conclude the trial of the applicant within a period of one year from the date of production of certified copy of this order. The observations made in this order will not affect the trial court’s proceedings and it shall decide the case on the basis of evidence lead before it.

Order Date :- 10.07.2019

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