IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.706 of 2013
Arising Out of PS.Case No. -45 Year- 2011 Thana -BHAIRABASHTHAN District- MADHUBANI
1. Raghav Jha @ Raghab Jha Son Of Sri Kunwar Jha Resident Of Village Lohna,
P.S. Bhairav Asthan, District Madhubani.
…. …. Appellant/s
Versus
1. The State Of Bihar
…. …. Respondent/s
Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Nilesh Kuamr, Advocate
Mr. Ravi Ranjan, Advocate
For the Informant : Mr. Pankaj Kumar Jha, Advocate
For the Respondent/s : Mr. Binod Bihari Singh, APP
CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 08-04-2017
This appeal is directed against judgment dated 24.08.2013 and
order of sentence dated 27.08.2013 passed by Sri Man Mohan Sharan
Lal, 3rd Additional Sessions Judge, Madhubani passed in Sessions
Trial No.215 of 2012, arising out of Bhairabsthan P.S.Case No.45 of
2011, G.R. No.1012 of 2011, by which he has convicted the sole
appellant under Section 304B and 498A of the Indian Penal Code and
also under Section 4 of the Dowry Prohibition Act and sentenced him
to undergo R.I. for ten years for offences punishable under Section
304B of the IPC and two years R.I. for the offences punishable under
Section 498A of the Indian Penal Code and he has also been fined of
Rs.5000/- under Section 498A of the Indian Penal Code and in default
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of payment of fine, to undergo R.I. for three months. The appellant
has further been sentenced to undergo R.I. for two years under Section
4 Dowry Prohibition Act and in default of payment of fine, R.I. of
three months. The learned trial court has further directed that all the
sentences shall run concurrently, however, the appellant has been
acquitted from the charges under Section 302 of the Indian Penal
Code and U/S 3 of the Dowry Prohibition Act.
2. The prosecution case in short is that Umesh Chandra Mishra,
(P.W.5) filed a written report on 18.09.2011 at 06:00 P.M. before the
Police stating therein inter alia that marriage of his daughter, Bandana
Kumari, was solemnized with the appellant 19 months ago and after
the second marriage, his daughter was taken to the maternal home by
the appellant and other accused persons. It is also stated that the
accused persons threatened and asked her to bring 5 Tola gold from
her father, which was informed by the deceased to her mother but they
did not take it seriously. It is also a case that three months prior, she
gave birth to a child and today an information was given about date of
„bidagari‟ of her daughter fixed on 30.9.2011, which was accepted by
the accused persons, however, again a demand of 5 Tola gold was
made by the appellant and further threatened of dire consequences. It
is also a case of the prosecution that thereafter, he received
information that his daughter died due to „current‟ and he
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immediately came to the house of the accused and found the dead
body at „Verandah‟ and also found sign of assault as well as
blackening on her neck that clearly shows that she has been killed. It
is also his case that the whole articles of his daughter was scattered in
her room and her petticoat was besmeared with stool and he did not
find any „Jewar‟ of daily use. He also found articles of cremation. He
has further alleged that all the accused persons including the appellant
have killed her.
3. On the basis of aforesaid written report, Bhairabasthan
P.S.Case No.45 of 2011 was registered against the appellant and other
persons under Section 498A, 323 and 304B of the Indian Penal Coe
and 3 4 of the Dowry Prohibition Act and after investigation, the
police has submitted charge-sheet against the appellant only under
Section 304B and 498A of the Indian Penal Code as well as under
Section 3 4 of the Dowry Prohibition Act and the investigation was
kept pending against the other accused persons, which was committed
to the court of Sessions, which ultimately came to the file of Sri Man
Mohan Sharan Lal, 3rd Addl. Sessions Judge, Madhubani for trial and
disposal.
4. The appellant has been charged under Section 498A and 304B
of the Indian Penal Code and under Section3 4 of the Dowry
Prohibition Act.
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5. The learned trial court after the trial convicted and sentenced
the appellants under Section 304B of the Indian Penal Code as well as
under Section 498A of the Indian Penal Code and also under Section
4 of the Dowry Prohibition Act, however, the appellant has been
acquitted from the charges under Section 302 of the Indian Penal
Code and U/s 3 of the Dowry Prohibition Act.
6. The appellant has assailed the judgment and order and the main
ground of the appellant is that the prosecution has not been able to
prove the demand of dowry as well as torture in this case and for
conviction under Section 304B of the Indian Penal Code, it is well
established practice that the prosecution has to prove; (i) Death within
seven years of marriage; (ii) Death under unnatural circumstances;
(iii) Demand of dowry; (iv) Torture and cruelty of the deceased with
respect to demand of dowry and (v) Torture and cruelty in connection
with demand of dowry soon before death.
7. It bas been argued in the present case that the prosecution has
miserably failed to prove the prosecution story of demand of dowry
and cruelty, as such, the prosecution has failed to prove charge under
Section 304B and Section 498A of the IPC and in support of his
contention, the learned counsel for the appellant has cited decision of
Hon‟ble Apex Court reported in 2013BLJ (4) 179 SC, 2009 (16)
SCC 778, AIR 2003 SC 2865.
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8. On the other hand, learned A.P.P. and the learned counsel for
the informant has submitted that there are cogent and sufficient
materials available on record that clearly shows that the appellant was
demanding 5 Tola gold prior to the occurrence and accused persons
threatened of dire consequences, if the demand is not fulfilled and
there was finding of the Doctor showing cause of death due to
strangulation. It has also been argued that the death of the deceased
was within five years of her marriage, as such prosecution has been
able to establish its case under Section 304B 498Aof the Indian
Penal Code. In support of this contention, learned counsel for the
informant has cited decisions of Hon‟ble Apex Court reported in AIR
1995 SC 120, AIR 2003-2108 SC and AIR 1999 SC-146.
9. On the aforesaid background, now the evidences have to be
scrutinized. Prosecution has come with a case that the marriage of the
deceased was solemnized just 19 months prior to the occurrence. It is
also a case of the prosecution that she was tortured for demand of 5
tola gold and she was threatened on 18.9.2011 that if the demand is
not fulfilled, she had to face dire consequences and thereafter on the
same day, the deceased died and the Doctor has found the death due
to strangulation.
10. In this case the prosecution has examined seven witnesses in
support of his case, out of which, P.W.1 is Satrughan Jha, P.W.2 Nand
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Kumar Jha, P.W.3 Anil Kumar Jha, P.W.4 Sudharshan Kumar
Mishra, P.W.5 is Umesh Chandra Mishra (informant), P.W.6 is Dr.
Pashupati Mishra and P.W.7 is Rajbansi Ram, retired Police Inspector
and I.O. of the case and following documents are admitted into
evidence on behalf of prosecution:-
Exhibit. 1, Signature of Shatrughan Jha over Seizure list.
Exhibit. 1/1, Signature of Nandan Kumar Jha over seizure list.
Exhibit. 1/2, Signature of I.O. over seizure list.
Exhibit. 2, Written Report.
Exhibit. 3, Post mortem Report.
Exhibit. 4, Inquest Report.
Exhibit. 5, Formal F.I.R.
11. On behalf of defence three witnesses have been examined and
they are: D.W. 1, Naresh Jha, D.W. 2, Santosh Jha, and D.W. 3,
Raghav Jha (appellant).
12. P.W.5 is informant of this case and he has supported
prosecution case, so far factum of marriage within seven years is
concerned and stated in his evidence-in-chief that the marriage was
solemnized 19 months ago and his evidence also shows that when the
deceased came on „Bidagari‟, she told about the demand of 5 Tola
gold and good clothes, for which she was tortured. His evidence also
shows that she had disclosed about the same to his mother. His
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evidence further shows that on 18.9.2011, he was at Biroul in his
house and he was informed by his son that „bidagari‟ of his daughter
had been fixed on 30.9.2011 and the accused persons are ready for the
same. His evidence also shows that on 18.09.2011, appellant told him
about 5 „tola‟ gold and also told him about facing dire consequences,
if the said demand is not fulfilled and at 1.00 P.M., he received
information on telephone that his daughter, Bandana Kumari has died.
His evidence further shows that he along with others went to the
house of the deceased and saw the dead body of the deceased on the
straw mat, having spot on her eyes and also deep spot on his waist,
there was deep spot on right side of her neck and also on the back. His
evidence also shows that inside of her room, some articles were
scattered and also articles of cremation was there. He has given his
written statement before the police and he has proved the written
statement given in his writing and signature as Ext. 2. This witness
has been cross examined at length and in his cross examination, he
has stated at para 4 that after the marriage, the deceased came on
„bidagari’ to his house along with the appellant and stayed there for
nine days and they have come for 3-4 times, there was cordial relation
between the appellant and his family members. Para 5 of his cross
examination also shows that the appellant has never made any
demand directly to him and further says that his daughter also had not
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informed about the demand of dowry and he did not know, as to
whom his wife told about the said demand. He has also admitted that
thereafter he had no talk with the appellant rather he had a talk with
the father-in-law. Para 5 of his cross examination also shows that
when he had gone to her „Sasural‟ of his daughter, at that time, the
appellant, his father, mother and other relatives were present there but
he has not been informed as to how she died. His evidence in para 11
also shows that he was also present at the time of post mortem but
para 13 of his cross examination shows that he had not tried to get the
dead body rather the dead body was sent to her „Sasural‟ and further
shows that after birth of the child of the deceased, she had gone to
„Sasural‟ after ten days. Hs evidence also shows that she was treated
well and a suggestion had been given to this witness that he had
lodged a false case with ulterior motive of some demand.
13. So far evidence of Shatrughan Jha (P.W.1) is concerned, his
evidence- in -chief shows that the marriage was solemnized 19
months ago and three months prior she had a child also. His evidence-
in -chief also shows that he had gone to her house and found the dead
body on straw mat. This witness has also stated that the inquest report
and the seizure list were prepared in front of him and he put his
signature thereon and he also identified the signature of Nandan
Kumar Jha over the inquest report. In cross examination, this witness
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has stated that she was his niece. In Para 7 of his cross examination,
he has stated that he enquired from the public, present there about her
death and they disclosed that she died due to „kai-dast‟ (diarrhea) His
evidence in para 7 also shows that they have not asked for the dead
body. In para 8, this witnesses has also stated that her niece had told
about the demand of dowry to her mother and also told that they are
pressurizing for that.
14. Nandan Kumar Jha (P.W.2) has also stated about the marriage,
18 months prior and after that on 18.9.2011, a phone call was received
in his house that the deceased has died. His evidence further discloses
that he saw bruise on the eye, neck and back of the deceased and
further disclose that her petticoat was besmeared with stool and
broken bangles were there and he has put his signature on the seizure
list, which he has identified as Ext.1/1. In para 2 of his evidence, this
witness has stated that Bandana Kumari was tortured for demand of
gold and as the demand was not fulfilled, she was killed . In his cross
examination at para 5, this witnesses has disclosed that at her
„sasural‟, 10 persons were there including the appellant, his father,
mother and her aunt standing near the dead body. His evidence further
discloses that the family members of the in-laws of the deceased has
not tried for cremation. In para 6 of his cross examination, this
witness has admitted that the story of demand of dowry was not
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disclosed by the deceased to him. He has further stated that he had
talk with the deceased one or two times in her „maike‟ and evidence
of this witness also disclose that father -in -law of the deceased was
friend of his uncle.
15. Evidence of Anil Kumar Jha (P.W.3) shows that he has went
with the informant to „sasural‟ of the deceased and in para 2, he has
stated that there was demand of 5 Tola gold and clothes by the
appellant and his family members and this witness was discharged as
nobody is available for further cross examination. His evidence does
not disclose, as to what is his source of information about demand of
dowry and as to whether he is any relative of informant (P.W. 5) or
not ?
16. Sudarshan Kumar Mishra (P.W.4) is brother of the deceased
and his evidence- in -chief also discloses death of deceased on
18.9.2011 and further stated that the deceased was married three years
prior with the appellant and on information, he went there and saw the
dead body of the deceased and he has also saw the sign of abrasion on
the eye and back . He has also stated in his evidence that whenever he
used to go to her „sasural‟, she used to talk that her husband is saying
that good clothes and ornaments have not been given but she has not
stated about the demand by the other accused persons. His evidence
also shows that on 18.9.2011, he had fixed the date of „bidagari‟ of
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the deceased on 30.9.2011 and he had been told that at the time of
„bidagari‟, fulfil the demand of the appellant otherwise anything can
happen and thereafter he received information of her death. In his
cross examination at para 4, he said that when she was staying in her
„maike‟, their conjugal life was found cordial and six months prior,
she had gone to her „sasural‟. His evidence in cross examination
further discloses that he went to her‟ sasural‟, 2-4 times and her
family members were happy due to birth of a child and relationship
with the appellant was also cordial with her but whenever he went to
her „sasural‟, she used to tell his brother- in -law that his demand will
be fulfilled when any occasion comes. His cross examination at para
8, also disclosed that he received information that the deceased is
suffering from diarrhea and she died on way while they were taking
her to Doctor. In para 7 of the cross examination also discloses that he
enquired about the death of the deceased from the villagers and they
told that she died due to „kai and dast‟ or current. His evidence in Para
10 further shows that they have not asked for the dead body nor it was
given to them and his evidence further shows that they have filed a
petition before the High Court for custody of the child of the
deceased.
17. Rajbansi Ram (P.W.7) is I.O. of the case and his evidence
shows that he had registered the case on the basis of written report of
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the informant (P.W.5) and take over investigation himself . He has
inspected the place of occurrence, prepared inquest report, took the
statement of the witnesses, obtained post mortem report and after
completion of the investigation, submitted charge-sheet against the
appellant under Section 498A, 323 , 304B/34 of the IPC as well as
under Section ¾ of the Dowry Prohibition Act and kept the
investigation pending against the other accused persons . His evidence
in para 6 of the cross examination further disclose that he arrested the
appellant from his house. In para 7, his evidence disclose that he had
enquired and came to know that the deceased was not treated by any
Doctor but he has not written anything in his diary .
18. P.W.6 is the Doctor, who has performed post mortem and he
has stated in his evidence on 19.9.2011 that he was posted at Sadar
Hospital, Madhubni and he performed the post mortem of the dead
body of Bandana Kumari, wife of the appellant, which was identified
by the Chaukidar I/C, Pulkit Das at 11.15 A.M. and he has found
following ante mortem injury :
i. left eye ball was swollen with echymosis in conjunctiva with
swollen cornea.
ii. Abrasion in left side of neck
iii. Bruise 3″ X 1″ over back
2. Ono dissection, larynx, and trachea were found fractured with
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blood and blood clots in tracheal cavity heard, left chamber was
empty and right chamber was full of blood. All viscera namely lung,
liver, spleen and kidney were found congested. Urinary bladder was
found empty. Uterus was non gravite, stomach contained indigested
food faecal Materials and gases and intestine contained. Gases and
faecal matters. Times since death is twenty four hours. Death, in his
opinion, was due to asphyxia caused by strangulation. He proved
post-mortem report as Ext.3. He has also been cross examined by the
appellant and he has stated in his cross that in the case of diarrhea,
stomach may contain indigested food and faecal material and gases.
The physical appearance of the dead body shows the strangulation.
Further stated that strangulation can not be manufactured.
19. Considering the prosecution evidence, as discussed above, it
appears that P.W. 5, has supported the prosecution case regarding
death of the deceased within seven years of her marriage and also that
dead body was found at „Verandah‟ of the appellant but so far
allegation of cruelty for demand of dowry is concerned, there is
nothing in his evidence to support the allegation of cruelty. No doubt
his evidence-in-chief shows that there was demand of dowry of 5
„bhar‟ Gold and good clothes, he has been told by the appellant that
he will have to face dire consequences, if demand of dowry is not
fulfilled but his cross-examination shows that he has categorically
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stated in para -5 of his cross-examination that prior to the marriage or
after marriage, his son-in-law has not made any demand. His wife also
not disclosed him about the demand of dowry. Further his evidence in
para 15 shows that his daughter was happy in her sasural with her
husband. From the discussions made above, evidence of informant
relating to demand of dowry and cruelty, does not appear to be
trustworthy and believable.
20. So far evidence of other witnesses are concerned, evidence of
P.Ws shows about the factum of marriage within seven years and
further dead body of the deceased was found at the house of appellant.
However, evidence of cruelty and torture is concerned, P.W.1, had
stated in para -8 that her niece (deceased) had told her mother about
the demand of dowry and also about the fact that they used to
pressurize the deceased but the same is hearsay evidence only.
Evidence of P.W. 2 also shows about torture for demand of dowry and
as the demand was not fulfilled, deceased was killed but in para -6 of
his, cross-examination, this witness has stated that story of demand of
dowry was not disclosed to him by the deceased. His evidence further
disclosed that he had talked with the deceased one or two times in her
„maike‟ and there is nothing in his evidence to show about source of
his knowledge about demand or torture. As such, his evidence with
regard to demand and cruelty by the appellant, does not appear to be
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trustworthy and beyond doubts. P.W. 3, has also stated about the
demand of 5 „Bhar‟ gold and clothes by the appellant and it further
appears that this witness was discharged as nobody was available for
his further cross-examination. However, his evidence does not show
that as to whether he was related to the informant and his family
members and what is his source of informant with regard to the above
stated demand and further there is absolutely nothing in his evidence
to show that the deceased was subjected to cruelty before her death.
Evidence of P.W. 4, brother of the deceased also shows that
whenever he used to go to her „sasural‟, deceased used to tell him that
her husband always used to taunt that gold and other ornaments have
not been given but she had not stated about the demands made by
other accused persons. His evidence also shows that on 18.09.2011,
he had fixed the date of „Bidagari‟ of the deceased on 30.09.2011 and
it was told by the appellant that if the demand was not fulfilled at the
time of „Bidagari‟ anything can happen and thereafter, he received
information of her death but his cross-examination in para -4, shows
when deceased was living in her „maike‟ her conjugal life was cordial
and six months prior, she had gone to her „sasural‟. His cross-
examination further shows that he had gone to the deceased‟s sasural
two to four times and her husband and other family members were
happy with the birth of a child and relationship with the family was
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cordial. His cross-examination further shows that deceased used to tell
the appellant that his demand will be fulfilled when any such occasion
arises. On close scrutiny of evidence of the witness also it does not
appear that even if the appellant had demanded 5 „tola‟ gold and date
of „bidagari’ was fixed on 30.09.2011, after talk with the accused
persons and he has assured to fulfill his demand when occasion arises,
therefore, as to what was the occasion for appellant for killing the
deceased on the same day, this creates a serious doubt about his
evidence.
21. Defence has come with a case that the deceased died due to kai
and dast (diarrhea) and for that she was also treated. In support of this
contention, he has examined two witnesses and apart from that,
appellant has got examined himself also as defence witness and they
have stated that deceased died due to kai and dast (diarrhea) and for
that she was treated by village doctor. Further defence of the appellant
and other accused persons is that they have falsely been implicated in
this case as the informant had demanded Rs. 10 lakhs and stated that
otherwise he will implicate them in false case.
22. In the present case, sole appellant has been charged under
Section 498A, 323, 304B/34 Indian Penal Code and Section 3 4 of
the Dowry Prohibition Act and was convicted under Section 304B,
498A Indian Penal Code and also under Section 3 4 of Dowry
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23. So far Section 304B Indian Penal Code is concerned, it has
been incorporated in the Criminal Law Second Amendment Act,
1983, which has been brought with a view to control the menace of
death due to dowry and Section 304(B) provides as follows:-
“(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 har-
assment 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.]
24. Accordingly, amendment to Section 113B has also been
incorporated in the Evidence Act, which reads as follows:-
“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
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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 304B, of the Indian
Penal Code.”
25. On plain reading of Section 304B as well as Section 113B of
Evidence Act, it appears that there shall be presumption of dowry
death if prosecution has been able to establish following:
(i) death of the woman must have caused by burns or bodily injury or
otherwise than normal circumstances.
(ii) such deaths must have occured within seven years of her marriage.
(iii) soon before her death, woman must have been subjected to
cruelty or harassment by her husband or his relatives.
(iv) such cruelty or harassment was for, or in connection with, any
demand for dowry.
(v) such cruelty or harassment should have been meted out to the
woman soon before the marriage.
26. On conjoint reading of both the Sections i.e. 304B Indian Penal
Code and 113B of Evidence Act, it is clear that once prosecution
succeeds in proving the above circumstances, their shall be
presumption of “Dowry Death” against the husband or relative of
husband. The decisions cited by both the parties also supports above
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proposition. At the same time, for drawing presumption, prosecution
has to prove the above circumstances beyond all reasonable doubts i.e
there must be cogent and reliable evidence in support of above
circumstance.
27. In the aforesaid background, let me consider the evidence,
which has already been discussed above.
28. So far death of deceased is concerned, there are consistent
evidence of prosecution witnesses supported by medical evidence of
Doctor (P.W. 6) and also corroborated by post-mortem report
(Exhibit. 3) that death of deceased was due to strangulation. As such,
so far death of deceased is concerned, that is not under normal
circumstances and caused due to strangulation.
29. There are also consistent evidence available on record that
deceased died within seven years of her marriage. In this case,
appellant got himself as defence witness but he has not denied the
factum of death within seven years of her marriage.
30. So far subjecting the deceased to cruelty or harassment soon
before death and that too in connection with demand of dowry is
concerned, the word “cruelty” has not been defined under Section
304B Indian Penal Code but the same has already been defined in
Explanation part of Section 498A Indian Penal Code and that shows:
Explanation:-
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(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.”
31. Furthermore, in case of Section 304B Indian Penal Code,
prosecution has also to prove that cruelty has been meted out to the
deceased soon before her death and in connection with the demand of
dowry.
32. In the present case, from the evidence as discussed above, it
appears that though there are some prosecution evidence is there about
the demand of 5 bhar Gold but on close scrutiny of those evidences,
they do not appear to be believable and trustworthy, so far evidence of
P.W. 5 is concerned, it has been stated that the deceased was
subjected to cruelty soon before her death in connection with dowry,
there is no clinching and reliable evidence available, no doubt,
prosecution has come with a story that appellant threatened of dire
consequences if demand is not fulfilled but that evidence is also not
appear to be reliable as evidence of P.W. 4 and P.W. 5 shows that she
was happy in her sasural.
33. From the discussions made above, so far evidence to show that
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the deceased was subjected to cruelty or harassment, which is also one
of the most vital circumstance to be proved by prosecution, it appears
from discussions made above that there is no cogent or reliable
evidence available on record to show that the deceased was subjected
to cruelty or harassment. Moreover, in this case, mother of the
deceased might have been a crucial witness, so far demand of dowry
and subjecting her to cruelty is concerned, but surprisingly, she has
not been examined by the prosecution as witness in this case. In this
case appellant got himself examined as D.W. 3 but no suggestion was
given to him about story of demand or about torture or harassment.
34. Considering the discussions made above, it appears that though
the deceased died in mysterious circumstances due to strangulation
and within seven years of her marriage but so far demand of dowry
and subjecting the deceased to cruelty or harassment soon before the
death is concerned, evidences are not cogent and reliable.
35. In this case petitioner has been convicted under Section 304B
as well as 498A Indian Penal Code and also under Section 3 4 of
Dowry Prohibition Act, but as discussed above, prosecution has failed
to prove the prosecution story of demand of dowry and subjecting the
deceased to cruelty or harassment soon before her death. As such no
presumption can be drawn for conviction of appellant under Section
304B Indian Penal Code. As such I have come to the irresistible
Patna High Court CR. APP (SJ) No.706 of 2013 dt.08-04-2017
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conclusion that prosecution has failed to prove its charges against the
appellant under Section 304B and 498A Indian Penal Code and under
Section 4 of Dowry Prohibition Act. Hence conviction of appellant
under above Sections of Indian Penal Code as well as Dowry
Prohibition Act, is not sustainable.
36. In this case, appellant was also convicted under Section 302
Indian Penal Code but the Trial Court had acquitted the appellant
from the charges under Section 302 Indian Penal Code.
37. In this case death of the deceased is due to strangulation and
further dead body was found at the house of the appellant and other
accused persons and as such burden to prove the death of deceased,
lies on the appellant as mentioned in Section 106 of Indian Evidence
Act.
38. However, in the present case, it is an admitted fact that
informant and family members were informed about death of the
deceased and evidence also shows that prior to death, there was no
tension between the parties and there is no evidence that only
appellant and none else was present at the time of occurrence. Hence
burden of proof is not only on appellant to explain the circumstances.
39. Furthermore, no appeal either by the State or by the informant
has been preferred against acquittal of appellant under Section 302
Indian Penal Code.
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39. In view of discussions made above, judgment and order of
conviction and sentence passed against the appellant under Section
498A, 323, 304B/34 Indian Penal Code and Section 4 of the Dowry
Prohibition Act is not sustainable in the eye of law.
40. Accordingly, this appeal is allowed. Conviction and sentence of
the appellant are set aside. As appellant is in judicial custody, he is
directed to be set at liberty forthwith, if not required in any other case.
(Vinod Kumar Sinha, J)
sunil/-
AFR/NAFR NAFR
Uploading Date 10.04.2017
Transmission Date 10.04.2017