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Subodh Sao vs State Of Bihar on 14 May, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.422 of 2003
(Appeal against judgment of conviction dated 08.07.2003
and order of sentence dated 09.07.2003 passed in Sessions Case No.937
of 2001 by learned 3rd Additional Sessions Judge, Jamui).

Subodh Sao, Son of Late Gopal Sao, Resident of Village-Aliganj, Chandradip
(Sikandra), District-Jamui.

… … Appellant/s
Versus
State Of Bihar

… … Respondent/s

Appearance :

For the Appellant/s : Mr.Umesh Prasad, Adv
: Mr.Mrityunjay Kumar,Adv
For the Respondent/s : Mr.Sunil Kumar Pandey, APP.

CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
CAV JUDGMENT
Date : 14-05-2019
Heard learned counsel for the parties.

2. The sole appellant faced trial for offences under

Sections 304B and Section498A I.P.C. and was found guilty by the

learned Trial Judge and ordered to undergo rigorous imprisonment

for 10 years for offence under Section 304B I.P.C. and rigorous

imprisonment for 3 years for offence under Section 498A I.P.C.

The sentences have been directed to run concurrently.

3. The prosecution case as disclosed in the written

report (Ext.2) of Manohar Sao (P.W.4) is that the daughter of the

informant was married in Baisakh (April-May, 1998) with the

appellant. After few months, the daughter-Punam informed that

her inlaws including the appellant demand different articles as

dowry. The informant went to her matrimonial house and pacified
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the matter. After few days, the informant again got information

that the inlaws are torturing her for non-fulfillment of dowry

demand and the daughter is leading a life of torture and

suffocation. The informant again went to his daughter, she detailed

the demand by inlaws and was weeping, she stated that the inlaws

are demanding scooter and threatens to kill her on non-fulfillment

of dowry demand. Thereafter, the daughter of the informant came

back to the house of the informant and she disclosed what was

happening with her to all the family members. However, the

informant again consoled her and sent her to her Sasural. On

25.04.1999, the informant got information that his daughter is ill in

her matrimonial house. Since strike of the public transport was

going on on that day, the informant could not visit there rather in

the next morning, received information that his daughter has died

in Jamui hospital. When the informant reached at Jamui Hospital,

he found the dead body. Postmortem examination was done on the

dead body and thereafter dead body was handed over to the

informant. The informant alleges that the inlaws including the

appellant have committed her murder by poisoning. The inlaws,

who were available in the hospital, fled away as soon as the

informant reached there.

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4. On the basis of written report dated 08.05.1999,

Chandradeep P.S.Case No.67 of 1999 was registered under

Sections 498A, Section304B/Section34 I.P.C. and 3/4 of the SectionDowry Prohibition

Act against six FIR named accused person including the appellant.

After investigation, the police submitted chargesheet only against

the appellant on 03.10.2000 for offences under Sections 304B and

Section498A I.P.C. only and investigation was kept pending against other

named accused person. On the same day i.e. 03.10.2000, the

learned Magistrate took cognizance for offences aforesaid wherein

the chargesheet was submitted. The case was triable by a court of

Sessions, hence, it was committed for trial on 12.10.2001 and

separate record was opened for those accused, against whom, the

investigation was pending.

5. The learned Trial Judge framed charges for offences

under Sections 304B and Section498A I.P.C. on 11.01.2002.

6. The prosecution examined altogether five witnesses,

P.W.1, Dr.S.K. Chaudhary had performed postmortem examination

on the dead body of Punam Devi. The postmortem report is Ext.I.

P.W.2-Manish Kumar is brother of the deceased. P.W.3, Radha

Kumari is sister of the deceased and P.W.4-Manohar Sao, the

informant of the case as well as father of the deceased. P.W.5-

Madan Rai is a formal witness, who has proved the writing of the
Patna High Court CR. APP (SJ) No.422 of 2003 dt. 14-05-2019
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police on the formal FIR and formal FIR has been marked as

Ext.6.

7. After examination of the prosecution witnesses, the

incriminating materials coming in the prosecution evidence was

put to the appellant in his examination under Section 313 Cr.P.C.

to which the appellant denied and claimed that he has been falsely

implicated in this case. From the trend of cross examination to the

witnesses of the occurrence, it appears that the suggestion of the

defence is that there was dispute between accused and a co-

villager of the informant and for that reason, false case was

lodged. However, no defence evidence was produced in the trial.

8. The learned Trial Judge examined in details the

prosecution evidences and came to the conclusion that the

prosecution has established the charges against the appellant.

9. Learned counsel for the appellant submits that the

learned Trial Judge did not consider the serious lacunae in the

prosecution case inasmuch as the death took place on 26.04.1999.

The postmortem examination was already performed on the same

day and the written report was submitted to the police on

08.05.1999 and for this delay, there is no explanation rather

suspicion is there that after deliberate thought over the matter, the

FIR was lodged, just to pressurize the appellant and others. Next
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contention is that there is lack of material on the record that death

was result of cruelty or harassment “soon before” her death. Next

contention is that the statement of the victim lady cannot be treated

as dying declaration in the facts and circumstances of this case

because there is no relation between the statement of the victim

and her death. In the circumstance, the learned court below should

not have relied on the statement of the victim lady. Further

contention is that Investigating Officer of the case was not

produced and examined by the prosecution, which has prejudiced

the defence of the accused.

10. Per contra, learned counsel for the State contends

that the learned Trial Judge has discussed and held that all the

ingredients of offences under Sections 304B and Section498A I.P.C.

clearly established during the trial. The learned Trial Judge has

further found that the aforesaid delay in lodging of the FIR is

immaterial in view of the trustworthy and impeccable prosecution

evidence available on the record.

11. P.W.4, the informant of this case, has deposed that

victim Punam Devi was her daughter, she was married in the year

1998 with the appellant. After marriage, she went to her Sasural

(matrimonial home) at Aliganj. After two months of stay thereat,

the informant got information that the inlaws are demanding a
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scooter as dowry. The information was given by victim Punam

Devi. On receipt of the aforesaid information, the informant went

there. The victim was weeping and stated that the inlaws are

demanding a scooter. The informant consoled her and returned

back. He further stated that on 25.04.1999, he got information of

illness of Punam, but due to strike of public conveyance, he went

to Jamui on 26.04.1999, where dead body of her daughter was

there. Postmortem was performed. Thereafter, he lodged the case

before the police. During cross examination, he stated that Punam

had disclosed him that the female inmates of the house sometimes

compelled her to live in the cowshed. Nothing material is there in

further cross examination, wherein the informant stated that he

does not remember the date of the individual incident of meeting

with the daughter and her complaints. He further admitted that

dead body was cremated by the informant and others and not by

the inlaws. The witness denied the suggestion that due to some

dispute between Sanjay Sao and the accused person, the false case

has been lodged.

12. P.W.2, Manish Kumar, the brother of the deceased,

has deposed that when the deceased was in her matrimonial home,

the inlaws used to assault her. He specifically named the accused

person including the appellant that they were demanding Scooter
Patna High Court CR. APP (SJ) No.422 of 2003 dt. 14-05-2019
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and T.V. and on non-fulfillment of demand, they had threatened to

kill to Punam. He further deposed that the accused person had

demanded T.V. and Scooter, when this witness had gone to the

Sasural of his sister. They had threatened to kill the victim on non-

fulfillment of dowry demand. Thereafter, he has narrated the

occurrence of 25.04.1999 when the family members got

information of illness of Punam, however, due to strike of public

transport, he could not go there and on 26.04.1999, got

information that Punam is already dead now. Thereafter, his father

and uncle had gone to the hospital. There is nothing in other

paragraphs of cross examination of this witness to disbelieve his

veracity and trustworthiness.

13. P.W.3-Radha is sister of the deceased. She has

supported that the victim was married in the year 1998 with the

appellant. When the victim was residing in her matrimonial house,

she had informed on phone that inlaws demand a Scooter. When

the victim returned to her father’s house, she disclosed to everyone

that the inlaws demands Scooter and they assault her for non-

fulfillment of the demand. In the cross examination, she stated that

Punam had disclosed her miseries to her friend also, who was

already married thereafter and was residing in her Sasural.
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14. P.W.1, Dr. S.K.Choudhary, has deposed that on

26.04.1999, he was posted at Sadar Hospital Jamui and on that

day, the Civil Surgeon, Jamui constituted a Board of Doctors for

conducting postmortem examination on the dead body of Punam,

wife of Subodh Sao, R/o Village-Aliganj (Sonkhar), P.S.-

Chandradeep, District-Jamui and the Board consisted of three

Doctors namely Dr.Jawahar Prasad Singh, Dr.Binod Kumar Singh

and P.W.1. The Board found the following:

(A) Rigourmortis partially present, inpassing of stage-

greenish colour of abdominal skin in both eliac fossa, Neck and

both legs.

(B)(i)Blood stained cloth with foul smell present in

mouth and both nostril.

(ii)Fecal matter with foul smell present around genital

and anal region.

(iii) Face was congested.

(iv)2″x 3″x abrasion present on the right knee in front.

(v) Abrasion present on the right elbow each measuring

1 ½”x 1″ and 1″x ½”.

(vi) Postmortem blisters were present over both thighs

and buttocks.

Patna High Court CR. APP (SJ) No.422 of 2003 dt. 14-05-2019
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Injury No.IV and V were antemortem in nature caused

by hard and blunt substance.

(C) Cause of death was due to insertion of organo

phosphorous compound, leading to cardio respiratory failure.

(D) Viscera were preserved for chemical examination

for confirmation of cause of death.

(E) Viscera of lever, spleen, heart, lungs, kidney, uterus

and stomach with its contents were preserved.

(F) Time elapsed since death till postmortem between 24

to 36 hours.

15. The witness stated that the opinion was opinion of

the Board and organo phosphorous compound is a poisonous

substance which may cause death. In the cross examination, he

clarified that Organo Phosphorous is an insect killing compound.

Diarrhoea is not one of the important symptoms in case of organo

phosphorous compound. He further stated that he had not

mentioned in the report about finding on any kerosene or garlic

like smell. He further disclosed the viscera report was not

received by him.

16. Thus from evidence of P.W.1, it is evident that

death of Punam was not under normal circumstances.

17. Section 304B(1) defines dowry death as follows:
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304-B. 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 , any demand for

dowry, such death shall be called “dowry death”,

and such husband or relative shall be deemed to

have caused her death.”

18. In the present case, (a) the death of Punam was

result of bodily injury found by P.W.1 and certainly occurred

otherwise than under normal circumstances. (b) The death took

place within a year of her marriage. (c) The prosecution evidence

shows that soon before her death, she was subjected to cruelty or

harassment by her husband and relatives of the husband. (d) The

cruelty or harassment was for and in connection with, demand of

dowry.

19. In Kans Raj Vs. State of Punjab, reported in

(2000)5 SCC 207, the Hon’ble Supreme Court in paragraph-10 of

the judgment said that “as and when the aforesaid circumstances
Patna High Court CR. APP (SJ) No.422 of 2003 dt. 14-05-2019
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are established, a presumption of dowry death shall be drawn

against the accused under Section 113-B of the Evidence Act. It

has to be kept in mind that presumption under Section 113-B is a

presumption of law. We do not agree with the submissions made

by Mr Lalit, learned Senior Counsel for the accused that the

statement made by the deceased to her relations before her death

were not admissible in evidence on account of the intervening

period between the date of making the statement and her death.”

20. In Kans Raj Case, the victim was married on

09.07.1985 and was found dead on 23.10.1988 at the residence of

her inlaws. The death was found to have occurred not under

ordinary circumstances. The evidence of the brother of the

deceased disclosed that demand of cash and Scooter as well as a

Refrigerator was raised by the accused person and the victim had

expressed danger to her life.

21. Hon’ble Supreme Court further held;

“16. No presumption under Section 113B of

the Evidence Act would be drawn against the

accused if it is shown that after the alleged

demand, cruelty or harassment the dispute

stood resolved and there was no evidence of

cruelty, and harassment thereafter. Mere lapse
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of some time by itself would not provide to an

accused a defence, if the course of conduct

relating to cruelty or harassment in connection

with the dowry demand is shown to have

existed earlier in time not too late and not too

stale before the date of death of the woman.

The reliance placed by the learned counsel for

the respondents on SectionSham Lal v. State of

Haryana [1997 (9) SCC 579] is of no help to

them, as in that case the evidence was brought

on record to show that attempt had been made

to patch up between the two sides for which

Panchayat was held in which it was resolved

that the deceased would go back to the nuptial

home pursuant to which she was taken by the

husband to his house. Such a Panchayat was

shown to have held about 10 to 15 days prior

to the occurrence of the case. There was

nothing on record to show that the deceased

was either treated with cruelty or harassed

with the demand of dowry during the period

between her having taken to the nuptial home
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and her tragic end. Such is not the position in

the instant case as the continuous harassment

to the deceased is never shown to have settled

or resolved.”

22. In the case in hand, evidence has come that

demand of dowry and torture for the same continued till death

without any break. Thus, the presumption of law is there against

the appellant and the appellant has failed to rebut the said

presumption.

23. The statement of the victim regarding demand of

dowry and torture for the same is relevant and admissible under

Section 32(1) of the Evidence Act inasmuch as the statement

relates to the circumstances of the transaction which resulted in her

death. The application of Section 32 of the Evidence Act was also

considered in Kans Raj Case aforesaid. The Hon’ble Supreme

Court referred to the earlier judgments on the issue and paragraph-

21 of one of the judgments was reproduced as follows:

“21. Thus, from a review of the authorities

mentioned above and the clear language of

Section 32(1) of the Evidence Act, the following

propositions emerge:

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(1) Section 32 is an exception of the rule of

hearsay and makes admissible the statement of

a person who dies, whether the death is a

homicide or a suicide, provided the statement

relates to the cause of death, or exhibits

circumstances leading to the death. In this

respect, as indicated above, the SectionIndian Evidence

Act, in view of the peculiar conditions of our

society and the diverse nature and character of

our people, has thought it necessary to widen

the sphere of Section 32 to avoid injustice.

(2) The test of proximity cannot be too literally

construed and practically reduced to a cut-and-

dried formula of universal application so as to

be confined in a straitjacket. Distance of time

would depend or vary with the circumstances of

each case. For instance, where death is a

logical culmination of a continuous drama long

in process and is, as it were, a finale of the

story, the statement regarding each step directly

connected with the end of the drama would be

admissible because the entire statement would
Patna High Court CR. APP (SJ) No.422 of 2003 dt. 14-05-2019
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have to be read as an organic whole and not

torn form the context. Sometimes statements

relevant to or furnishing an immediate motive

may also be admissible as being a part of the

transaction of death. It is manifest that all these

statements come to light only after the death of

the deceased who speaks from death. For

instance, where the death takes place within a

very short time of the marriage or the distance

of time is not spread over more than 3-4 months

the statement may be admissible under Section

32.

(3) The second part of clause (1) of Section 32

is yet another exception to the rule that in

criminal law the evidence of a person who was

not being subjected to or given an opportunity

of being cross-examined by the accused, would

be valueless because the place of cross-

examination is taken by the solemnity and

sanctity of oath for the simple reason that a

person on the verge of death is not likely to

make a false statement unless there is strong
Patna High Court CR. APP (SJ) No.422 of 2003 dt. 14-05-2019
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evidence to show that the statement was secured

either by prompting or tutoring.

(4) It may be important to note that Section 32

does not speak of homicide alone but includes

suicide also, hence all the circumstances which

may be relevant to prove a case of homicide

would be equally relevant to prove a case of

suicide.

(5) Where the main evidence consists of

statements and letters written by the deceased

which are directly connected with or related to

her death and which reveal a tell-tale story, the

said statement would clearly fall within the four

corners of Section 32 and, therefore,

admissible. The distance of time alone in such

cases would not make the statement irrelevant.”

24. In Sharad Birdhichand Sarda Case reported in

(1984)4 SCC 116, the Hon’ble Supreme Court observed in

paragraph-15 of the judgment as follows:

“15. It is enough if the words spoken by the

deceased have reference to any circumstance

which has connection with any of the
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transactions which ended up in the death of the

deceased. Such statement would also fall within

the purview of Section 32(1) of the Evidence Act.

In other words, it is not necessary that such

circumstance should be proximate, for, even

distant circumstances can also become

admissible under the sub-section, provided it has

nexus with the transaction which resulted in the

death.”

25. In view of the legal position discussed above, the

statement of victim-Punam relating to circumstances leading to her

death, made to her father, brother and sister and other friends

before her death are admissible in evidence under Section 32 of

the Evidence Act. Moreover the dying declaration is corroborated

by P.W.2 so far demand of dowry was there.

26. In paragraph-15 of the judgment in Kans Raj

Case, the Hon’ble Supreme Court examined scope and

applicability of the term “soon before” appearing in Section 304B

I.P.C. and held as follows:

“15. It is further contended on behalf of the

respondents that the statements of the

deceased referred to the instances could not
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be termed to be cruelty or harassment by the

husband soon before her death. “Soon before”

is a relative term which is required to be

considered under specific circumstances of

each case and no straitjacket formula can be

laid down by fixing any time-limit. This

expression is pregnant with the idea of

proximity test. The term “soon before” is not

synonymous with the term “immediately

before” and is opposite of the expression

“soon after” as used and understood in

Section 114, Illustration (a) of the SectionEvidence

Act. These words would imply that the interval

should not be too long between the time of

making the statement and the death. It

contemplates the reasonable time which, as

earlier noticed, has to be understood and

determined under the peculiar circumstances

of each case. In relation to dowry deaths, the

circumstances showing the existence of cruelty

or harassment to the deceased are not

restricted to a particular instance but
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normally refer to a course of conduct. Such

conduct may be spread over a period of time.

If the cruelty or harassment or demand for

dowry is shown to have persisted, it shall be

deemed to be “soon before death” if any other

intervening circumstance showing the non-

existence of such treatment not brought on

record, before such alleged treatment and the

date of death. It does not, however, mean that

such time can be stretched to any period.

Proximate and live link between the effect of

cruelty based on dowry demand and the

consequential death is required to be proved

by the prosecution. The demand of dowry,

cruelty or harassment based upon such

demand and the date of death should not be

too remote in time which, under the

circumstances, be treated as having become

stale enough”.

27. The evidences available on the record clearly

establish that daughter of the informant died an unnatural death in

her matrimonial home within a year of her marriage and she was
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persistently subjected to cruelty and harassment for dowry during

this short period. Hence, the onus shifted on the appellant to

produce evidence to rebut the aforesaid presumption. In this case,

there is no evidence brought on the record in rebuttal, hence, I am

also of the opinion that this is a fit case for conviction of the

appellant.

28. Though learned counsel for the appellant

contended that Investigating Officer was not brought in court by

the prosecution, however learned counsel has failed to point out

any prejudice for non-examination of the I.O. There is no serious

contradiction in the evidence of the witnesses of the occurrence

before the Court to that of made before the police. Since dead

body was first found at the hospital and the postmortem report

reveals a case of homicidal death or at least unnatural death not

occurring in normal circumstances, hence, place of occurrence was

immaterial to prove the charge under Section 304B and Section498A

I.P.C. Therefore, in my view, non-examination of the I.O. has not

prejudiced the defence of the appellant and the law is well settled

that non-examination of the I.O. does not prove necessary fatal to

the prosecution case unless prejudice is shown by the accused.

Reference may be made to the case of Dashrath Mandal and 3

Ors Vs. The State of Bihar, reported in 1993 (1) PLJR 737.

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29. There is no need to emphasize that there is ample

evidence that the victim was subjected to cruelty by the appellant

and others. Hence, punishment under Section 498A I.P.C. is also

well justified.

30. Though the learned Trial Judge has not taken into

consideration the mitigating and aggravating circumstances while

awarding sentences nor there is material brought on the record to

prove mitigating and aggravating circumstances, however, the

learned Trial Court has adopted middle way in choosing the

sentences for the appellant. Hence, this Court is not inclined to

interfere with the sentences awarded.

31. Accordingly, this appeal stands dismissed. Bail

bond of the appellant stands cancelled. Appellant is directed to

immediately surrender to serve out the remaining sentences. The

learned Trial Judge shall take suitable step for apprehension of the

appellant to serve out the remaining sentence.

(Birendra Kumar, J)

Nitesh/-

AFR/NAFR AFR
CAV DATE 09.05.2019
Uploading Date 14.05.2019
Transmission Date 14.05.2019

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