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2000 DIGILAW 1003 (PAT)

Arvind Tiwari v. State Of Bihar

2000-08-16

D.P.S.CHOUDHARY

body2000
Judgment D.P.S.Choudhary, J. 1. The sole appellant has preferred this appeal against the judgment and order dated 26th of March, 1998 passed by the 7th Additional District and Sessions Judge, Chapra in Sessions Trial No. 43 of 1990 convicting the appellant for the offence under section 304-B of the Indian Penal Code (hereinafter referred to as the IPC) and sentenced him to undergo rigorous imprisonment for 10 years. The appellant was charged for the offence under sections 302, 304-B and 201 of the IPC and Section 4 of the Dowry Prohibition Act. However, he has not been found guilty for the other offences. 2. The brief facts of the case is that appellant Arvind Tiwari was married with Gita Kumari (deceased) in Feburary, 1988. The informant Surendra Mishra (P.W. 4) who is uncle of the deceased in his fardbeyan (Ext. 7) alleged that he came to know about the death of Gita Kumari on 24.11.1988. However, after the recovery of the dead body the F.l.R. was lodged on 1.12.1988 and investigation taken up. The charge-sheet was submitted against the accused and after commitment the trial proceeded in the court below. 3. The prosecution in all examined 10 witnesses, out of whom P.W. 1 (Ras Bihari Singh) and P.W. 5 (Om Prakash Chourasiya) are formal witnesses, who have proved the signatures on the seizure- list (Exts. 1/1 and 1/2) and the sanction order (Ext. 2) respectively. P.W. 2 (Suresh Kumar Singh) has been declared hostile and P.W. 6 (RajendraTiwari) has been tendered for cross-examination. P.W. 7 (Anand Prakash Gupta) is the l.O. and Dr. A.K. Sinha (P.W. 8) held the postmortem on the dead body of the victim lady. Remaining witnesses, including P.W. 3 (Purna Chandra Tiwari), Biresh Mishra (P.W. 9), are brothers of the deceased and Lalpari Devi (P.W. 10), her mother, are material witnesses. 4. The defence has examined six witnesses and have brought on record some letters alleged to have been written by the deceased and her relation. They have been marked Ext. A series. D.W. 1 (Nand Kishore Tiwari), D.W. 2 (Dhanesh Tiwari), D.W. 3 (Yogendra Tiwari) and D.W. 4 (Bhikhan Singh) have deposed on the point that neither there was any demand of dowry nor the victim lady died due to burn injury. D.W. 5 (Uma Shankar Ojha) and D.W. 6 (Birendra Tiwari) are related to the accused. 5. A series. D.W. 1 (Nand Kishore Tiwari), D.W. 2 (Dhanesh Tiwari), D.W. 3 (Yogendra Tiwari) and D.W. 4 (Bhikhan Singh) have deposed on the point that neither there was any demand of dowry nor the victim lady died due to burn injury. D.W. 5 (Uma Shankar Ojha) and D.W. 6 (Birendra Tiwari) are related to the accused. 5. From the evidence adduced on behalf of the parties and considering the facts and circumstances the trial court has come to the finding that appellant who is husband of the deceased lady, has committed murder of his wife after few months of her marriage. 6. P.W. 8 who held the postmortem examination of the deceased has found the following ante-mortem injuries on her persons : The body was found to be in an advance stage of decomposition. Rigour mortis was absent. Colour of the eyes could not be noted as cornias have become cloudy. There was small amount of hair on the scalp. Very large portion of the skin all over the body was absent and underlying subcutaneous fat was exposed. Whatever skin was present over chest and right arm showed evidence of ante mortem burn injuries. Tongue was partially out of the mouth. No other discernible signs of injury found over the body. On dissection, the abdomen was found to be distended and stomach contained digested food. The viscera were decomposing, the uterous was nogrivid. The respiratory passages contained few carbon particles from water after decomposition the skin peels off. The skin of the dead body mostly were peeled. In the opinion of the Doctor there was evidence of ante-mortem burn injuries and death was caused due to burn and the body remained in the water for long period after her death. He further opined that time elapsed since death was between 5 to 6 days. He conducted the postmortem on 2.12.1988 and the body was recovered from a well on 1st of December, 1988. 7. The evidence of P.Ws. 3, 4, 9 and 10 are to the effect that Gita was burnt to death and her dead body was thrown in the well situated near the house of the accused. However, none of these witnesses are eye witness and they are resident of her Naihar village. 7. The evidence of P.Ws. 3, 4, 9 and 10 are to the effect that Gita was burnt to death and her dead body was thrown in the well situated near the house of the accused. However, none of these witnesses are eye witness and they are resident of her Naihar village. From the evidence on record some facts in the case are admitted : (i) The deceased lady was married with accused in the month of February, 1988; (ii) Her dead body was recovered on 1.12.1988 from a well situated in the village where the accused resides; (iii) On the basis of the evidence of the Doctor and the postmortem report her death was due to burn injuries and these injuries were ante-mortem in nature. 8. The main contention raised on behalf of the appellants is that the deceased lady did not die in her Sasural, that is to say in the house of the accused. She was taken from her sasural by her uncle the informant (P.W. 4) some time before the occurrence. It was suggested to the P.Ws in their cross-examination that deceased lady died in the house of the informant who threw the dead body in the well but falsely implicated the accused. No other reason has been suggested on behalf of the appellant why the informant will commit murder of her own niece. The plea of the defence does not appeal to the reasoning. 9. The evidence of the l.O. (P.W. 7) is relevant. He is the 2nd l.O. because the first I.O. who made investigation in this case and was written case diary up to paragraph 45 died during the investigation of the case. His case diary has been marked Ext. 5. He has proved the formal F.l.R. (Ext. 6). He stated that when he took charge of this case he searched the accused-appellant but he was absconding from his house. On confidential information he raided the house of his relation at Mohalla Shrikrishnapuri, Patna and arrested him from there on 25.12.1988. Thus the accused remained absconding after the death of his wife. If the contention of the defence is accepted that deceased died in the house of her uncle and it was her Naihar people who were responsible for her death, in that case, the bonafide conduct of the appellant was to inform the police instead of absconding. Thus the accused remained absconding after the death of his wife. If the contention of the defence is accepted that deceased died in the house of her uncle and it was her Naihar people who were responsible for her death, in that case, the bonafide conduct of the appellant was to inform the police instead of absconding. This is a strong circumstance against the appellant without any satisfactory explanation by him. The Apex Court in several decisions has held that if the husband disputes that his wife had died in some other circumstance his natural conduct would be to rush to the local police station and inform about the death of his wife. In its absence, the presumption would be that the husband was responsible for the murder of his wife. 10. It was submitted on behalf of the appellant that there is no eye witness of the alleged occurrence. No one has seen the appellant committing murder or throwing her dead body in the well. In the facts and circumstances of the case it is apparent that the victim lady died in the village home of the appellant. The eye witnesses, if any must be his co-villager. Therefore, they were beyond the reach of the prosecution to examine them as eye witness, nor a co-villager will like to depose against him. Therefore, the circumstances and other collateral or corroborative evidence play important role in such case. 11. P.Ws. 2, 3, 4, 6 and 8 have denied that the victim lady was ever brought from her sasural after she went there. They denied the suggestion of the defence that P.W. 4 (the informant) has brought her from her sasural and she was residing with him. The evidence of DWs. 1 to 5 on this point does not inspire confidence. Some of them have stated that they have not seen Gita Devi. They have not stated that in their presence P.W. 4 has performed Rukhsadi of Gita Devi from the house of the appellant. Therefore, I do not find any reliable evidence to support the defence case that the victim lady was not residing in her sasural on the alleged date of occurrence. 12. It is the case of the prosecution that after the marriage of Gita Devi with the appellant there was consistent demand of a T.V. set and other articles. Therefore, I do not find any reliable evidence to support the defence case that the victim lady was not residing in her sasural on the alleged date of occurrence. 12. It is the case of the prosecution that after the marriage of Gita Devi with the appellant there was consistent demand of a T.V. set and other articles. P.W. 4 stated that when he visited the house of the appellant, he and his family members made demand of T.V. and other articles. Neither the informant nor his family members were financially sound to fulfil the demands of the appellant. P.W. 4 further stated that in order to please the appellant, he gave Rs. 500/- to him to purchase a wrist watch. P.Ws. 3, 4, 9 and 10 stated that deceased had told them that she was regularly tortured in her sasural for non-fulfilling the demand of dowry. It was submitted on behalf of the appellant that there is no independent witness on this point and all the witnesses are family members of the deceased. This is a common practice that such demands are made within the four walls of the house and in between the two parties and not before outsider. As such, possibility of other witness to corroborate the demand of dowry is not possible in all cases. 13. It was argued on behalf of the appellant that from the evidence of D.Ws, and the letters brought on record (Ext. Aseries) it is clear that she never made any complaint against her husband or inlaws of harsh treatment with her or of any demand of dowry. On careful scrutiny of these letters it appears that Exts. A and A/1 were written by one Manorarna Devi and Manju Devi to the deceased. The scrutiny of these letters do not give any clear picture or clue with regard to good or bad relationship in between the deceased and the appellant or his family members. Therefore, on the basis of these letters and the evidence of D.Ws. 1 to 6 no conclusion could be arrived that deceased lady was having cordial relation with her husband or in-laws. 14. In the facts and circumstances the prosecution has proved beyond doubt that there was regular demand of dowry, including T.V. set by the appellant and his family members from the deceased and she was subjected to cruelty for the non- fulfilment of this demand. 14. In the facts and circumstances the prosecution has proved beyond doubt that there was regular demand of dowry, including T.V. set by the appellant and his family members from the deceased and she was subjected to cruelty for the non- fulfilment of this demand. 15. The trial court has looked into the case diary of the deceased l.O. (Ext.5), who visited the place of occurrence which is the house of the appellant. The room in which Gita Devi lived was shown to the I.O. by the family members of the appellant. The objective finding of the I.O. is that the room was recently washed and cleaned. In absence of non-examination of this I.O. the contents of the diary should not be considered. But this objective finding may help in considering the evidences on record. 16. The appellant has been convicted for the offence under section 304-B of the IPC. To constitute an offence under this section the basic ingredients are that (i) the marriage of the deceased took place within seven years of her death; (ii) she died due to burn injury or any other abnormal circumstance; and (iii) she was subjected to cruelty soon before her death. 17. From the discussions made above and considering the evidences and circumstances on record, all these three ingredients are proved beyond doubt and the conclusion derived is that the deceased lady who was married with the appellant in the month of February, 1988 died in the month of December, 1988. The medical evidence proved that she died due to burn injury. The evidences referred to above further prove that there was regular demand of dowry including T.V. etc. from the deceased and for the non-fulfilment of these demands, she was regularly tortured. As stated above, the absconding of the accused after the recovery of the dead body of the deceased and subsequent arrest from a different place and not informing the local police is a strong circumstance which goes against the appellant. There is strong presumption against the appellant under Section 113-B of the Evidence Act and the presumption leads to the conclusion that deceased lady was burnt to death and her dead body was thrown in the well, which was subsequently recovered, and cause of her death was non-fulfilment of demand of dowry, made on behalf of the appellant before her death. The Apex Court in Kans Raj V/s. State of Punjab, reported in 2000(3), PLJR (SC) 68, held that under section 113 B Evidence Act, "soon before" is a relative term and cannot be laid down by fixing of the time limit, nor it is synonymous with the term "immediately before". Mere lapse of some time will not be itself a defence to the accused. 18. The Apex Court has held that additional demand of dowry after the marriage falls under the definition of dowry, as reported in the case of Prem Singh V/s. The State of Punjab 1999(4) BBCJ page- 75. It is the case of the prosecution that after her marriage when she came to Sasural the appellant and her family members started demanding T.V. and other articles and also threatened her of dire consequences in the event of non-fulfilment of these demands. 19. Having taken into consideration the evidence on records and the submissions made on behalf of the appellants and after according my anxious consideration, I am satisfied that the view taken by the trial court is fully warranted on record and accordingly, I confirm the findings of guilt and sentence against the appellant by the trial court. 20. It was submitted on behalf of the appellant that the alleged occurrence took place in the year, 1988 and appellant was aged 26 years at that time. He has sufferred a lot during this long period. He has remained in jail custody for about two years and still in jail. As such, his period of sentence may be reduced to the period already undergone in custody. The appellant is husband of the deceased lady. The medical evidence shows that the lady was burnt to death and thereafter the dead body was thrown in the well. This is a heinous crime against a helpless lady. In the facts and circumstances, the period of sentence is adequate and it does not require any interference. In the result, there is no merit in this appeal, which is accordingly, dismissed.