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IN THE HIGH COURT OF JUDICATURE AT PATNA
Birendra Kumar, J.
Shivjee Sah, Son of Late Ram Sakal Sah and ors. – Appellants
Versus
The State of Bihar – Respondent
Criminal Appeal (SJ) No.4273 of 2018 & 126 of 2019
Decided On : 15-04-2021
Indian Penal Code, 1860 – Section 304B – Indian Evidence Act, 1872 – Section 113-B – Dowry death – Conviction and sentence – To prove charge under Section 304-B IPC, only factum of unnatural death in matrimonial home within seven years of marriage would not by itself suffice to hold accused persons guilty of offence under Section 304-B IPC rather prosecution has to prove that woman was subjected to cruelty or harassment in connection with any demand for dowry and such cruelty or harassment was soon before her death – On proof of all these ingredients, presumption under Section 113-B of Evidence Act would arise – There is no prosecution witness who claims to have seen appellants committing any torture against deceased or making any demand from deceased or any other family members – Even if prosecution allegation is assumed to be correct that there was demand of a gold chain and a locket, said demand was already fulfilled – Allegation of any torture for non-fulfillment of dowry demand loses its surface – Some of prosecution witnesses for first time stated in Court that there was further demand of motorcycle which is not believable nor acceptable as this allegation of demand never surfaced before trial – Doctor has found case of suicidal death by hanging – There is no independent corroboration, of any torture to deceased, by any neighbour – Prosecution evidence is very shaky and clumsy to prove ingredient of demand of dowry and torture for the same and on such evidence conviction would not be safe – Judgment of conviction and order of sentence set aside by extending benefit of doubt. (Paras 9 to 15, 20 to 22)
Criminal Procedure Code, 1973 – Section 313 – Examination of accused – Incriminating circumstances appearing against accused in prosecution evidence must be put to accused at the time of statement under Section 313 Cr.P.C. – Unless such statements are put to accused to give opportunity to meet the same with explanation, such incriminating circumstances cannot be used against accused – Trial Judge failed in its duty to put specific incriminating material as to nature of demand and nature of torture allegedly committed by accused persons against deceased – Specific question on nature of demand and nature of torture was essential – Accused cannot be expected to submit a reasonable explanation to a vague question – Accused seriously prejudiced due to non-specific question as prosecution had improved allegation of demand of a motorcycle for first time in Court. (Paras 16 and 20)
JUDGMENT :
Appellants Shivjee Sah and Manju Devi are parents of appellant Prashant Kumar. All the appellants faced trial for offence under Section 304-B of the Indian Penal Code before learned Fast Track Court-I, Rohtas, Sasaram in Sessions Case No. 86 of 2014 arising out of Karakat P.S. Case No. 218 of 2013. The appellants were found guilty for the aforesaid offence by judgment dated 25.09.2018. Appellant Prashant Kumar was sentenced to undergo rigorous imprisonment for 10 years and other appellants were sentenced to undergo rigorous imprisonment for 7 years by the order of sentence dated 29.09.2018. The judgment of conviction and order of sentence are challenged in these appeals.
2. The prosecution case as disclosed in the written report of PW-3 Ramesh Prasad Gupta is that Namita Devi, the sister of the informant was married with appellant Prashant Kumar on 09.12.2012. After marriage, Namita went to her sasural in village Jayshree, P.S.-Karakat, District – Rohtas. After few days, Namita left for Visakhapatnam along with her husband Prashant where Prashant was a locomotive driver. From Visakhapatnam, Namita used to inform that she was being tortured even by physical assault by the husband for dowry. On request of Namita, her mother (PW-5) gave a gold chain to Prashant, however torture continued.
On 20.09.2013, Namita along with Prashant came to the house of the informant in village Dihri. Namita stayed there-at and Prashant left to appear in some examination at Patna. After return from Patna, on 23.09.2017 Namita and appellant Prashant left for village Jayshree. On 24.09.2013, Namita telephonically informed that her husband and other family members have bitterly assaulted her and have threatened to kill her. Thereafter, mother of Namita tried to contact her on phone, but no one was receiving the call. In the night at about 09:20, a call came that Namita is serious. Again at 09:30, a call came that Namita is dead now. According to informant, for nonpayment of money, the in laws, eleven in number, named in the F.I.R., allegedly committed murder of Namita by throttling her.
3. After investigation of the case, the police submitted chargesheet against the appellants aforesaid and investigation against the rest was kept pending.
4. Mr. Vikram Deo Singh, learned counsel for the appellant Prashant Kumar would contend that there is no acceptable evidence of demand of dowry and torture for the same after fulfillment of the demand of a gold chain as alleged by the prosecution. For the first time during trial, some of the prosecution witnesses claimed that there was further demand of a motorcycle. Learned counsel next contends that PW-2 Suresh Kumar Gupta and PW-4 Umesh Kumar Gupta are full brothers of the informant as well as of deceased Namita and these witnesses have not stated that there was any further demand after fulfillment of demand of gold chain. PW-4 has not stated at all that there was any demand of dowry and torture for non-fulfillment of the demand. The prosecution case suffers from non-corroboration of claim of the prosecution that the victim was throttled to death by the medical evidence. The doctor (PW6) has found the case of ‘hanging’. Learned counsel contends that there is complete lack of evidence that Namita was being tortured by her in-laws at any point of time due to non-fulfillment of dowry demand. Learned counsel contends that specific question on incriminating material as to nature of dowry demand and nature of torture is missing in the statement of accused under Section 313 Cr.P.C. Hence prosecution evidence, if any, cannot be relied upon.
Dr. Amrendra Kumar, learned counsel for the appellants Shivjee Sah and Manju Devi contends that the prosecution has not alleged about any demand of dowry against these appellants specifically nor there is any evidence that these appellants were involved in torture to Namita.
5. Mr. Sujit Kumar Singh, learned counsel for the State-respondent contends that plurality of the witness on
The central legal point established in the judgment is the interpretation and application of the provisions of Section 304-B of the IPC and Section 113-B of the Indian Evidence Act in establishing th....
Prosecution must prove that a woman's death occurred due to dowry-related cruelty or harassment soon before death for Section 304-B IPC to apply; lack of evidence leads to acquittal.
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