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
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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
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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.
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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
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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
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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
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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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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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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