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Shamsher Alam vs The State Of Bihar on 8 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.348 of 2015
Arising Out of PS.Case No. -37 Year- 2011 Thana -SRINAGAR District-
WESTCHAMPARAN(BETTIAH)

1. Shamsher Alam Son of Mahammadin Miyan, resident of village- Baghambarpur
Khalwa Tola, P.S.- Srinagar, District- West Champaran
…. …. Appellant/s
Versus

1. The State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Md. Anis Akhtar,
Mr. Arif Daula Siddique,
Mr. Mahtab Alam, Advocates.
For the Respondent/s : Mr. Syed Ashfaque Ahmad, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 08-03-2018

Vide judgment of conviction dated 08.04.2015, sole

appellant, Shamsher Alam has been found guilty for an offence

punishable under Section 304B IPC, 201 IPC and vide order dated

10.04.2015, he has been sentenced to undergo RI for 8 years under

Section 304B IPC, to undergo RI for 3 years as well as to pay fine

appertaining to Rs. 5,000/- and in default thereof, to undergo SI for 3

months additionally and further directed to run the sentences

concurrently, by Additional District Sessions Judge-3rd, West

Champaran at Bettiah in Sessions Trial No. 54/2012.

2. PW-2, Ibrahim Miyan gave his Fard-e-beyan on

27.07.2011 at about 11:15 hours disclosing therein that he married his

daughter Shamima Khatoon with appellant, Shamsher Alam son of

Mahammadin Miyan, resident of village- Baghambarpur, Khalwa
Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 2

Tola, P.S.- Srinagar, District- West Champaran on 28.04.2008 and at

the time of marriage, he had given dowry according to his means.

Since one and half years, her Sasuralwala started demanding Rs.

30,000/- in lieu of dowry and for that they began to torture. Lastly a

case was instituted in the court. Then thereafter, at the intervention of

villagers, the matter was amicably sorted out and in pursuance

thereof, they (accused) have executed Panchnama on 19.12.2010.

They, after giving an undertaking that they will not torture Shamima,

nor they will advance any kind of demand of dowry, got Bidai. Again,

his daughter was subjected to torture for fulfillment of Rs. 30,000/- in

lieu of dowry which his daughter communicated to him. On this

information, he inquired from his son-in-law whereupon he had

informed that he is going to Mumbai with Shamima. Getting this

information, he came to Baghambarpur, Khalwa Tola, to meet his

daughter where, he has not found her. On query, his son-in-law was

not consistent. Then thereafter, they pressurized whereupon, he

disclosed that after causing murder of his wife has concealed the dead

body beneath soil of the kitchen. He also made query from the

villagers who disclosed that Shamsher, Mahammadin Mian, Salmi

Begam, Mausi of Shamsher Alam, elder sister of Shamsher Alam,

they all on account of non fulfillment of demand of dowry, caused

murder of his daughter and then, buried the dead body in the kitchen
Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 3

in order to screen themselves.

3. On the basis of aforesaid Fard-e-beyan, Srinagar

PS Case No. 37/2011 was registered followed with investigation as

well as submission of charge-sheet against the appellant keeping the

investigation pending against the others whereupon trial commenced

and concluded in a manner subject matter of instant appeal.

4. Defence case as is evident from the mode of cross-

examination as well as statement recorded under Section 313 CrPC is

that of complete denial of the occurrence. It has also been pleaded that

deceased died of cardiac arrest in the kitchen itself while cooking food

which was communicated to the prosecution party but prosecution

party taking undue advantage advanced illegal demand which he

failed to fulfill whereupon, taking the police in collusion, got this case

filed. However, neither oral nor documentary evidence has been

adduced on behalf of defence.

5. In order to substantiate its case, prosecution had

examined altogether 7 PWs, those are, PW-1, Shahida Khatoon,

mother of the deceased, PW-2, Ibrahim Miyan , father of the deceased

(informant) PW-3, Babuddin, co-villager of the appellant, PW-4,

Shah Mohammad Miyan, Co-villager of the appellant, PW-5,

Khurshid Alam, brother-in-law of PW-2, PW-6, Sant Chaudhary, co-

villager of the appellant, and PW-7, Fard Hussain. Side by side had
Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 4

also exhibited Ext-1, Signature of informant over Fard-e-beyan, As

stated above neither oral nor documentary evidence has been adduced

on behalf of defence.

6. Manifold arguments have been raised on behalf of

appellant in order to challenge the finding having been recorded by

the learned lower court. The first and foremost argument happens to

be that on account of non examination of doctor as well as non

exhibition of PM report, the cause of death is not known. That being

so, one of the major ingredients attracting Section 304B IPC that

death should be by burn or by bodily injury or otherwise than in

normal circumstance, is not at all found duly substantiated. It has

further been submitted that when the evidences of the prosecution

witnesses are to be gone through, it is evident that another limb of

Section 304B IPC is also found missing. To substantiate the same, it

has been submitted that there should be demand of dowry and soon

before her death the deceased should have been tortured by her

husband or relative of the husband, on that score, is also found

missing as none of the witnesses had disclosed specifically the exact

date or time or proximity with the date of death of the deceased over

demand as well as torture having been inflicted over the deceased at

the end of the appellant and other family members. So, the important

ingredient constituting an offence punishable under Section 304B of
Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 5

the IPC is not at all found duly substantiated.

7. In an alternative it has also been submitted that

witnesses i.e. PWs-3, 4, 6 and 7, co-villagers of the appellant, though

were declared hostile but it is evident that they have not substantiated

the factum of demand of dowry as well as torture having been

inflicted upon the deceased soon before her death, contrary to it, they

have deposed that the deceased died of epilepsy. There was cordial

relation in between the spouses. So, it completely negativates the

allegation. So far evidence of PWs, 1, 2 and 5 are concerned, it has

been submitted that the same is suffering from vagueness and on

account thereof, their testimony could not be accepted on the score of

demand as well as torture having been inflicted upon her soon before

her death relating thereto.

8. In its continuity, it has also been submitted that

Investigating Officer has not been examined. That being so, the

interest of the appellant is found highly prejudiced. Magnifying the

same, it has been submitted that there happens to be discloser at the

end of the prosecution that dead body was recovered after excavating

the earth of the kitchen. Had there been examination of Investigating

Officer, then in that event, the narration having at the end of the

prosecution on that very score would have been properly tested.

Furthermore, it has also been submitted that from the evidence of PW-
Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 6

2, informant, it is evident that during course of cross-examination at

para-10, he had stated that police had taken signature over a paper

which, had there been examination of Investigating Officer would

have been properly exposed whether it was a Fard-e-beyan or was

taken during course of other kind of activity. So submitted that the

cumulative effect did not justify the finding having been recorded by

the learned lower court, consequent thereupon, the same is fit to be set

aside.

9. On the other hand, learned APP while supporting

the finding of the learned lower court, has submitted that in usual

phenomenon the co-villagers of the accused relating to dowry death

became volte face, even then, they have not supported the plea of the

defence in the background of the fact that they have themselves

admitted the cause of death to epilepsy, that means to say, irrespective

of non examination of Investigating Officer, the death of deceased is

not under controversy otherwise than normal circumstance as the

aforesaid assertion of the witnesses have not been challenged at the

end of appellant. Furthermore, It has also been submitted that from the

evidence of the witnesses, it is evident that it happens to be the

prosecution and not the accused who got prejudiced on account of non

examination of Investigating Officer as majority of the witnesses had

gone hostile to the prosecution.

Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 7

10. Apart from this, It has also been submitted that

marriage was in the year 2009, death is in the year 2011 and the

intermediary event discloses discord amongst the spouse over demand

of dowry, institution of case which culminated under the theme of

compromise, undertaking having at the end of appellant and then,

Bidai, is so intermingled that the same should be considered in a

sequence while appreciating one of the ingredients, torture soon

before her death and on account thereof, all the ingredients of Section

304B of the IPC is found duly substantiated. It has also been

submitted that the appellants failed to rebut the presumption in tune of

Section 113B of the Evidence Act and that being so, it happens to be

additional ground to be inferred against the appellant as all the

ingredients of 304B IPC is found duly substantiated.

11. Before coming to adjudicate upon, there should

be a glance over Section 304B of the IPC and the corresponding act

relating thereto. From the plain reading of Section 304B of the IPC

which has been introduced to put safeguard upon a woman from the

miseries of dowry by way of prescribing punishment against the

accused being responsible thereof with the aid of Section 113B of the

Evidence Act and so, in the backdrop of aforesaid social legislation,

the following ingredients have laid down for satisfaction of Section

304B IPC and the same are as follows:-

Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 8

A. The death should be within seven years of
marriage.

B. The death should be by burn or bodily injury or
otherwise than normal circumstance.

C. There should be demand of dowry and for that,
deceased would have been tortured soon before her death
D. By her husband or relative of the husband.

12. Then in that circumstance, it will be presumed in

terms of Section113B of the Evidence Act to be dowry death and in

the aforesaid background defence/accused will have an opportunity to

rebut the same. It is also apparent that the meaning of cruelty or

torture is found duly explained in terms of definition under Section

498A of the IPC.

13. Now the evidences having been led on behalf of

prosecution is to be seen whether the same has been able to satisfy the

ingredients as discussed hereinabove in order to justify the finding

having been recorded by the learned lower court. From perusal of the

record, it is evident that two kinds of witnesses are available. The first

one happens to be Naiharwala or connected therewith and those are

PWs 1, 2 and 5. The other set of witnesses are co-villagers of

appellant and those are PWs-3, 4, 6 and 7.

14. Now coming to evidence, it is evident that PW-3,

4, 6 and 7 have not said anything with regard to date of marriage,

rather they simply stated that deceased died of epilepsy. That means

to say, death has not been controverted. Whether the evidence of these
Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 9

witnesses regarding cause of death is reliable or not, is to be seen

from the evidence of other witnesses, that means to say PWs-1, 2 and

5. At the present juncture, it look prudent to identify that none of these

witnesses, i.e. PWs, 1, 2 and 5 are eyewitnesses to occurrence. That

means to say, whatever they disclosed, they disclosed on the

information as well as circumstances so visualizing tested by the

appellant during course of cross-examination, suggested to them by

the appellant during course of examination.

15. PW-1 is the mother of the deceased who had

deposed that Shamima Khatoon was her daughter who was married

with Shamsher Alam about 3-4 years ago and accordingly, her

daughter had gone to her Sasural where she stayed. During course of

stay, her husband, mother-in-law, father-in-law advanced demand of

Rs. 30,000/- and for that, they began to torture whereupon case was

instituted against them. Shamsher came to her place and then took

Rukhsati of Shamima. During course of her stay at her Sasural,

Shamsher with the help of his other family members caused murder of

Shamima and then buried her dead body in the kitchen. Later on,

Shamsher met with them who on query disclosed that Shamima

happens to be quite well but they could not be able to talk with

Shamima whereupon they became suspicious and made query during

course of which, the family members of Shamsher disclosed that
Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 10

Shamsher had taken away Shamima to Mumbai. Then thereafter, they

had gone to police station, informed the police. Police apprehended

Shamsher and recovered dead body after excavation from the place as

pointed out by Shamsher (kitchen room). At that very time, she was

present there. Identified the accused. During cross-examination, she

had stated that Shamima was kept in congenial atmosphere for 2-4

months after the marriage. She had gone to Sasural after one month of

marriage. She had come back to her Maika twice or thrice during

intervening period and lastly, Shamsher took her away. Shamsher

worked at Bombay since before marriage. Her daughter was not

complaining why Shamsher is residing at Bombay. Her daughter was

not insisting to go to Bombay. There was no hardship to her over her

livelihood. In para-3, she had stated that her daughter was residing

along with her mother-in-law, father-in-law. Her daughter had visited

her place twice-thrice from the date of marriage to the date of her

death. Whenever, she came to her place she had complained with

regard to torture. In para-4, she had stated that apart from having been

disclosed by her daughter regarding demand of dowry, demand of

dowry was also made from her after six months of marriage. In para-

5, she had stated that her daughter had instituted a case relating to

dowry. Then had denied the suggestion that no case was instituted. In

para-6, she has stated that she had not seen the occurrence. She further
Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 11

stated that after institution of the case relating to dowry Shamsher had

not gone to Bombay. He had gone only once after marriage. In para-7,

she has stated that after coming to know about murder of her

daughter, Mukhia, Sarpanch along with others have gone there. Her

husband had gone there. Her husband had instituted the case. Then at

para-8, she had stated that once she had gone to the place of her

daughter during her life time and the next, after her murder. She had

further stated that she along with her husband and others were present

at the Kitchen. There happens to be two rooms in the house. Then she

had disclosed that there was no fire in the furnace. Kitchen was duly

washed. Police had gone there. After excavating dead body was taken

out and then, the dead body was kept in Angan. Police had not

recovered Farsa, Katta etc. Police in standing posture had taken out

the dead body. She had not seen cut mark over the dead body. Police

prepared some document relating to dead body. Police had recorded

her statement. In para-9, She had stated that at that very time there

was Salwar Sameez over the dead body. It was of red colour. At that

very time, none of the accused persons were present there. Police took

away dead body along with them over jeep. Then had denied the

suggestion that Shamsher was staying at Mumbai during course of

murder of the victim.

16. PW-2 is the informant/father of the deceased. He
Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 12

had narrated that his daughter Shamima was married with Shamsher

about three years ago and on account thereof, she had gone to her

Sasural where after staying for 2-3 months, his son-in-law advanced

demand of Rs. 30,000/- which, he failed to provide and on account

thereof, Shamsher began to torture, whereupon, she came back to his

place. Then thereafter, his daughter had instituted a case. Later on

Shamsher and his parents came and then executed Panchnama and

further, assured that henceforth, they will not torture Shamima, case

was compromised and then thereafter, they took Bidai of Shamima.

While she was staying they re-agitated the demand and on account

thereof, caused murder of his daughter. His son-in-law had come to

his village and during course thereof, his wife inquired about

Shamima. He disclosed that Shamima had gone to Mumbai

whereupon, they became suspicious and rushed to Sasural of

Shamima and found her absent. Her Sasuralwala were also found

missing. Then they had gone to police station, narrated the event to

the police whereupon, Shamsher was taken to the police station and

on query, he disclosed that Shamima has been murdered and her dead

body has been buried in the kitchen room whereupon police along

with them came to the place of Shamsher. Kitchen room was dug and

then, dead body was recovered. Police had recorded Fard-e-beyan,

whereupon he had put his signature (exhibited). Identified the
Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 13

accused.

17. During course of cross-examination at para-3, he

had stated that Shamima had visited his place twice-thrice. Shamima

had disclosed regarding demand. He had not visited place of Shamima

on that very score. In para-4, he had stated that he is unable to

disclose the exact date of Panchayati but it was held in presence of

Mukhiya of Mahavirpur participated by his co-villager, Manzoor,

Saghir and other respectable persons. Document was prepared but he

is not remembering who had signed over the same. The document

might have been produced before the police. In para-5, he had stated

that he is not remembering the names of witnesses relating to dowry

case instituted by his daughter at an earlier occasion. At that very

time, he had not accompanied his daughter. So, he is unable to say in

which court it was filed and what was the judgment. In para-6, he had

stated that he had not seen the occurrence but Shamsher had disclosed

regarding murder of Shamima. In para-7, he had stated that he

accompanined the police to the place of Shamsher where had seen the

dead body in the kitchen. At that very time, dead body was wearing

red Salwar Sameez . He had not seen scratch over the dead body. He

had not seen the police making any kind of documentation. Shamsher

had disclosed regarding the dead body having been buried in the

kitchen. Police had not recovered weapon from the house. Then at
Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 14

para-9, he had stated that Shamsher has got four brothers and two

sisters. He had denied that rice-soup is being poured off in the ditch

having been dug in the kitchen. Then had denied the suggestion that

there was ditch for aforesaid purpose and at that very moment,

Shamima suffered from cardiac arrest as a result of which, she fell

down in the said ditch. At that very time, none was present. He had

also denied the suggestion that later on, Shamsher came and had seen

Shamima dead, rushed to his place and informed regarding death of

Shamima. In para-10, he had stated that in his presence, the police had

not recorded statement of any villager though large number of persons

have assembled. Police got his signature over a document. None other

signed. Then at para-12, he had denied the suggestion that no demand

was there, nor deceased was done to death at that very pretext. This

case has falsely been filed putting false and frivolous allegation.

18. PW-6 is Khurshid Alam who during course of

examination-in-chief had reiterated the version of PWs-1 and 2 over

marriage of Shamima, demand of dowry, torture during her stay, over

which she returned back and a case was instituted by the deceased

against her husband and others relating to torture on the pretext of

procurement of dowry, compromise having been effected, Rukhsati of

deceased and then, causing murder of deceased, recovery of dead

body from kitchen after digging. He along with one other had dug.
Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 15

During cross-examination at para-4, he had admitted that informant

happens to be his brother-in-law (Bahnoi). He had further stated that

they reached at the place of occurrence at about 6-7 A.M. Inquest

report was prepared, might have been by the S.P.. It was prepare at

4.00 PM. S.P., O/C, D.M. and villagers were present there. Mukhiya,

Kanhaiya Pandey were also present. In para-5, he had stated that in

the year 2010, there was demand of dowry and for that, information

was given to the court. He had also stated that they had inquired from

Shamsher who confessed that after committing murder he had buried

the dead body of Shamima in the house itself whereupon, they along

with police personnel came at the house of accused, kitchen room was

excavated and then dead body was taken out. He had further stated

that the dead body was taken away by the police. He had further stated

that inquest was prepared for the same whereupon, he has put his

signature. Then had denied the suggestion that Shamima was

suffering from epilepsy and on account thereof, she died. He had also

denied the suggestion that accused had informed him regarding

aforesaid mishappening. He had also denied the suggestion that they

have advanced illegal demand from the accused which he declined

and on account thereof, this case has been instituted levelling false

and frivolous allegation.

19. From the evidence available on the record, it is
Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 16

evident that there happens to be no denial at the end of the appellant

that at the time of death deceased was not staying at his place. That

being so, in terms of Section 106 of the Evidence Act, it was

incumbent upon him to have explained the death as, the same

occurred within four walls of the house without having any access to

anybody during course of occurrence. None of co-villagers, that

means to say, PWs, 3, 4, 6 and 7 have stated that they had gone and

seen the death having due to epilepsy. In likewise manner, when the

evidences of PW-1, 2 and 5 have been gone through, it is evident that

accused had suggested PW-1 and 5 that she died of epilepsy while

PW-2 that she died on account of heart failure while she was in the

kitchen and fell down in a ditch which was dug for storage of rice-

soup. Furthermore, when the evidence of PW-5 has been minutely

gone through, it is apparent that he claimed himself to be a person

along with one another who excavated the kitchen in presence of

appellant as well as police pointed out by the appellant and the dead

body was taken out, which is found tallied with the suggestion

whatever been made to PW-2 (para-9). That being so, presence of

dead body having buried in the kitchen, excavated, taken out, is found

duly substantiated and part thereof had also been admitted by the

appellant by way of suggestion and is found admissible in accordance

with Section 7 of the Evidence Act.

Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 17

20. In likewise manner, it is apparent while cross-

examining PW-2, informant, PW-5, PW-1, it is evident that the

accused had not denied institution of a case at the instance of

deceased, compromise having effected subsequently, execution of

Panchnama, an assurance having at their end and then, effecting

Rukhsati which happens to be the last one as the deceased was

subjected to death and so all the ingredients are found satisfied.

Furthermore, defence had not examined nor produced any kind of oral

or documentary evidence in order to rebut the prosecution.

21. In Maya Devi v. State of Haryana as reported in

2016 CrLJ 629, soon before death has been taken into consideration

in depth and explained in following manner:-

16) To attract the provisions of Section 304B, one of the main
ingredients of the offence which is required to be established is that
“soon before her death” she was subjected to cruelty or harassment
“for, or in connection with the demand for dowry”. The expression
“soon before her death” used in Section 304B IPC and Section 113B
of the Evidence Act is present with the idea of proximity test. In fact,
learned senior counsel appearing for the appellants submitted that
there is no proximity for the alleged demand of dowry and
harassment. With regard to the said claim, we shall advert to while
considering the evidence led in by the prosecution. Though the
language used is “soon before her death”, no definite period has been
enacted and the expression “soon before her death” has not been
defined in both the enactments. Accordingly, the determination of the
period which can come within the term “soon before her death” is to
be determined by the courts, depending upon the facts and
circumstances of each case. However, the said expression would
normally imply that the interval should not be much between the
cruelty or harassment concerned and the death in question. In other
words, there must be existence of a proximate and live link between
the effect of cruelty based on dowry demand and the death concerned.
If the alleged incident of cruelty is remote in time and has become
stale enough not to disturb the mental equilibrium of the woman
concerned, it would be of no consequence.

Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 18

xxxxxxxxxx

18) This Court, in Mustafa Shahadal Shaikh vs State of
Maharashtra (2012) 11 SCC 397 held as under:-

“9. In order to convict an accused for the offence punishable
under Section 304-B IPC, the following essentials must be satisfied:

(i) the death of a woman must have been caused by burns or
bodily injury or otherwise than under normal circumstances;

(ii) such death must have occurred within seven years of her
marriage;

(iii) soon before her death, the woman must have been
subjected to cruelty or harassment by her husband or any relatives of
her husband;

(iv) such cruelty or harassment must be for, or in connection
with, demand for dowry.

When the above ingredients are established by reliable and
acceptable evidence, such death shall be called dowry death and such
husband or his relatives shall be deemed to have caused her death. If
the abovementioned ingredients are attracted in view of the special
provision, the court shall presume and it shall record such fact as
proved unless and until it is disproved by the accused. However, it is
open to the accused to adduce such evidence for disproving such
compulsory presumption as the burden is unmistakably on him to do
so and he can discharge such burden by getting an answer through
cross-examination of the prosecution witnesses or by adducing
evidence on the defence side.

11. To attract the provisions of Section 304-B, one of the main
ingredients of the offence which is required to be established is that
“soon before her death” she was subjected to cruelty or harassment
“for, or in connection with the demand for dowry”. The expression
“soon before her death” used in Section 304-B IPC and Section 113-B
of the Evidence Act is present with the idea of proximity test. In fact,
the learned counsel appearing for the appellant submitted that there is
no proximity for the alleged demand of dowry and harassment. With
regard to the said claim, we shall advert to the same while considering
the evidence led in by the prosecution. Though the language used is
“soon before her death”, no definite period has been enacted and the
expression “soon before her death” has not been defined in both the
enactments. Accordingly, the determination of the period which can
come within the term “soon before her death” is to be determined by
the courts, depending upon the facts and circumstances of each case.
However, the said expression would normally imply that the interval
should not be much between the cruelty or harassment concerned and
the death in question. In other words, there must be existence of a
proximate and live link between the effect of cruelty based on dowry
demand and the death concerned. If the alleged incident of cruelty is
remote in time and has become stale enough not to disturb the mental
Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 19

equilibrium of the woman concerned, it would be of no consequence.
These principles have been reiterated in Kaliyaperumal v. State of
T.N. and Yashoda v. State of M.P.”

19) In the case of Ramesh Vithal Patil vs. State of Karnataka
(2014) 11 SCC 516 this Court held as follows:-

“20. Moreover, admittedly the deceased committed suicide
within a period of seven years from the date of her marriage. Section
113-A of the Evidence Act is, therefore, clearly attracted to this case.
Presumption contemplated therein must spring in action. This
provision was introduced by the Criminal Law (Second Amendment)
Act, 1983 to resolve the difficulty of proof where married women are
forced to commit suicide but incriminating evidence is difficult to get
as it is usually available within the four walls of the matrimonial
home…..”

22. Now coming over non examination of doctor as

death has not been denied which on account of infirmities persisting at

the end of appellant, clearly suggest otherwise than normal

circumstance. In likewise manner, non examination of Investigating

Officer has also not caused prejudice to the appellant as there happens

to be no contradiction visible in the evidence of PWs, 1, 2, 5 while

other stood hostile. Furthermore, apart from suggestion accepting

death in the kitchen, having dead body in a ditch, the PWs-1, 2 and 5

are consistent over digging of floor of kitchen, and then dead body

was taken out.

23. Having minute consideration as well as

observation of the evidence available on the record, it is apparent that

prosecution has succeeded in substantiating its case and that being so,

the judgment of conviction and sentence needs no interference.
Patna High Court CR. APP (SJ) No.348 of 2015 dt.08-03-2018 20

Hence, instant appeal is found meritless whereupon, dismissed.

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

cancelled directing him to surrender before the learned lower court to

serve out the remaining part of sentence, failing which learned lower

court will proceed against the appellant in accordance with law.

(Aditya Kumar Trivedi, J)
perwez

AFR/NAFR AFR
CAV DATE N/A
Uploading Date 14.03.2018
Transmission 14.03.2018
Date

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