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2003 DIGILAW 1159 (PAT)

Binod Kumar Jha v. State Of Bihar

2003-11-12

B.K.JHA, R.N.PRASAD

body2003
Judgment R.N.Prasad and B.K.Jha JJ. 1. The appellants have preferred this appeal against the judgment and order dated 13.6.2000 passed by the 1st Additional Sessions Judge, Katihar in Sessions Thai No. 181 of 1998 whereby these appellants have been convicted for the offence under section 304B/34 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. They have further been convicted for the offence under section 201/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for seven years. 2. One Inder Lal Mishra gave a written report to the police on 4.1.1998 at 10 A.M. stating therein that his daughter, namely, Abha Kumari was married to Binod Kumar Jha of village Routrate Poshan Tola on 10.5.1995. At the time of marriage he had given gift according to his capacity. At the time of second marriage the accused persons made a demand of Rs. 25,000/- and because of non-payment of the aforesaid amount the accused persons used to torture his daughter. Out of the aforesaid amount Rs. 15,000/- was paid to his son-in-law and his father. For the rest of the amount i.e. Rs. 10,000/- they used to torture. On message sent by her daughter she was called to his house. In the month of June, 1997 his son-in-law wrote a letter to send Abha Kumari to his house failing which he would take some wrong step. On 2.7.1997, he had sent Abha Kumari with Ranjit Kumar Mishra to the house of her husband. On 1.1.1998 he received a telegram from his son-in-law that Abha Kumari expired on 27.12.1997. He went to the house of his son-in-faw on 3.1.1998 where he learnt from the villagers that his daughter was killed on 27.12.1997 at 12O clock for the dowry and the dead body was concealed. 3. On the aforesaid written report a format F.I.R. was registered and the investigation was taken up. On completion of investigation chargesheet was submitted against the appellants for the offence under Sections 304-B and 201/34 of the Indian Penal Code. On receipt of the chargesheet cognizance was taken and the case was committed to the court of Sessions for trial. The trial court convicted the appellants as indicated above. 4. The defence of the appellants was denial of allegation and also that she was not at their house at the relevant time. On receipt of the chargesheet cognizance was taken and the case was committed to the court of Sessions for trial. The trial court convicted the appellants as indicated above. 4. The defence of the appellants was denial of allegation and also that she was not at their house at the relevant time. She was taken to her parents house and thereafter she did not return. There was no demand of dowry at the time of second marriage or anything was paid to them. 5. The prosecution in support of its case examined nine witnesses out of which P.W.1, P.W.2, P.W.3 and P.W.4 were declared hostile. P.W.6 and P.W.7, the brothers of the deceased, supported the allegation. P.W.8. the informant, also supported the allegation. P.W.5 is a doctor and P.W.9 is investigating officer. 6. The defence has also examined three witnesses to show that the deceased was not at the house of her husband at the relevant time and neither there was any demand of dowry nor payment of dowry. 7. The appellants have been convicted for the offence under Sections 304-B/34 of the Indian Penal Code. Sections 304-B of the Indian Penal Code was inserted by amendment. Similarly, Section 113-B of the Evidence Act was inserted by amendment. The intention of the legislature to bring the aforesaid provisions was to curb the increasing menance of evil practice of giving and taking dowry by imposing deterrent punishment. 8. Section 304-B of the Indian Penal Code reads as follows: "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. Explanation.For the purpose of this sub-section, dowry shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." 9. XXX XXX XXX 10. Explanation.For the purpose of this sub-section, dowry shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." 9. XXX XXX XXX 10. Section 113-B of the Evidence Act was inserted by Act 43 of 1986 with effect from 5.1.1986 which is as follows: "113-B. Presumption as to dowry death.When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.For the purpose of this section, dowry death shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)." 11. It is evident from the aforesaid section that in order to establish the offence under section 304-B of the Indian Penal Code, the prosecution is obliged to prove that death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances and such death occurs within seven years of her marriage and if it is shown that soon before the death she was subjected to cruelty or harassment by her husband or any relative of her husband, such harassment and cruelty msut be in connection with any demand for dowry. If the prosecution proves the aforesaid circumstances then presumption under section 113-B of the Evidence Act will operate. Such presumption is rebuttable and the onus to rebut shifts on the accused persons. In the light of the aforesaid provisions we proceed to examine the evidence on the record. 12. P.W. 6 has deposed that at the time of second marriage there was demand of Rs. 25,000/-. The accused persons used to torture her sister for non-fulfilment of demand. His father paid Rs. 15,000/-. However, they used to demand rest of the amount i.e. Rs. 10,000/-. A letter was received on 30.6.1997 asking to send his sister to the house of her husband. On 2.7.1997 he took his sister to the house of her husband. On 1.1.1998 he received a telegram that Abha Kumari expired on 27.12.1997. His father paid Rs. 15,000/-. However, they used to demand rest of the amount i.e. Rs. 10,000/-. A letter was received on 30.6.1997 asking to send his sister to the house of her husband. On 2.7.1997 he took his sister to the house of her husband. On 1.1.1998 he received a telegram that Abha Kumari expired on 27.12.1997. There is no evidence of this witness that after she was taken to her husbands house on 2.7.1997 there was any demand or torture to his sister by the accused persons. 13. P.W. 7 is brother of the deceased. He deposed that accused persons made a demand of Rs. 25,000/- and they used to torture his sister. His father paid Rs. 15,000/ and for rest of the amount i.e. Rs. 10,000/ they used to torture her. On 1.1.1998 a telegram was received to the effect that Abha Kumari died on 27th December, 1997. His father went to the house of his son-in-law and there he learnt that the accused persons had committed the murder of his sister. In cross examination the witness stated that no letter was sent for demand of dowry or torture. There is no evidence of this witness that soon before death there was any demand or torture by the accused persons. 14. P.W.8 is informant and father of the deceased. His evidence is that on 10.5.1995 his daughter, Abha Kumari, was married to Binod Kumar Jha. Second marriage was held in the month of December, 1995. The accused persons made a demand of Rs. 25,000/-. They also used to torture his daughter. In the month of March, 1996 he paid Rs. 15,000/- and for rest of Rs. 10,000/- they used to make a demand and torture his daughter. He brought his daughter in the month of May, 1997 to his house. On 26.5.1997 his son-in-law wrote a letter to send his wife failing which he would take some wrong step. His son-in-law, Binod Kumar Jha again wrote a letter to send his wife by 30th June, 1997 failing which he threatened to divorce his daughter. His son, P.W.6. took Abha Kumari to the house of her husband on 2.7.1997. At that very time also demand was made for Rs. 10,000/-. Except that on 2.7.1997 the demand was made there is nothing in the evidence of this witness that there was any demand or torture to Abha Kumari thereafter. His son, P.W.6. took Abha Kumari to the house of her husband on 2.7.1997. At that very time also demand was made for Rs. 10,000/-. Except that on 2.7.1997 the demand was made there is nothing in the evidence of this witness that there was any demand or torture to Abha Kumari thereafter. However, P.W.6 did not say in his evidence that there was any demand on 2.7.1997 when Abha Kumari was taken to the house of her husband. It is evident that there is nothing to show that soon before death there was any demand or torture by the appellants which is a necessary ingredient to bring the accused under section 304-B of the Indian Penal Code. Section 304-B of the Indian Penal Code clearly says that in case of abnormal death if it is shown that soon before the death she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand of dowry, such death can be called dowry death. It is evident from the discussions made that necessary ingredient has not been established by the prosecution to bring the case within the ambit of section 304-B of the Indian Penal Code. If the prosecution fails to establish the aforesaid ingredient then presumption under section 113-B of the Evidence Act does not apply and in such case the burden does not shift to the accused persons to rebut the presumption under the law. Since ingredient of section 304-B is absent on the record, in our view, the appellants cannot be convicted under Section 304-B of the Indian Penal Code. The court below did not consider the aforesaid aspect of the matter. In view of the aforesaid finding, the evidence on record which remains to be considered is only circumstantial evidence. The circumstances which have been brought on the record are that the witnesses i.e. P.W.6. P.W.7 and P.W.S have deposed that they had not seen the occurrence of commission of murder. They learnt from the villagers that Abha Kumari was killed by the appellants and the body was concealed by them. P.W.6 and P.W.7 are brothers of the deceased and P.W.8 is father of the deceased. P.W.7 and P.W.S have deposed that they had not seen the occurrence of commission of murder. They learnt from the villagers that Abha Kumari was killed by the appellants and the body was concealed by them. P.W.6 and P.W.7 are brothers of the deceased and P.W.8 is father of the deceased. No villagers came to support that they had informed these witnesses that Abha Kumari was killed by the appellants, nor there is any evidence on the record to show that any body had seen the commission of crime by the appellants. No body had seen taking away the dead body and concealing it in the tank. It has been stated by the aforesaid witnesses that Binod Kumar Jha, the husband of the deceased, disclosed that the dead body was concealed in the tank but the investigating officer, P.W.9, stated that P.W.6 did not say before him that Binod Kumar Jha indicated the place where the dead body was concealed. Furthermore, he did not say before him that there was demand of Rs. 25,000/- by the appellants and Rs.15,000/- was paid by them. He also did not say that he received a letter on 30.6.1997 to send her to his husbands house. Only he stated before him that on 2.7.1997 he took his sister to her husbands house. Similarly, P.W.7 also did not say that Binod Kumar Jha indicated the place where the dead body was concealed. Similarly, P.W.8 did not say that Binod Kumar Jha indicated the place where the dead body was concealed rather the investigating officer has stated in his evidence that Chaukidar had searched out the dead body and he brought the dead body from the tank. Thus, it is evident that the circumstantial evidence which has been brought on record, as discussed above, is not sufficient to come to a conclusion that the appellants committed murder or concealed the dead body. It is well established rule of law that in case of circumstantial evidence, chain must be complete to establish the guilt of the accused persons. In the instant case, there is no such circumstantial evidence/chain of circumstances to establish the guilt of the appellants. 15. Thus, on consideration, as discussed above, we are of the opinion that the prosecution has failed to establish its case and as such the conviction of the appellants cannot be upheld. Accordingly, this appeal is allowed. In the instant case, there is no such circumstantial evidence/chain of circumstances to establish the guilt of the appellants. 15. Thus, on consideration, as discussed above, we are of the opinion that the prosecution has failed to establish its case and as such the conviction of the appellants cannot be upheld. Accordingly, this appeal is allowed. The judgment and order of conviction is hereby set aside. The appellant, Binod Kumar Jha, who is in jail is directed to be released forthwith if not required in any other case. The appellants who are on bail are discharged from the liability of their bail bonds.