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2003 DIGILAW 710 (JHR)

Tilak Bedia v. State of Bihar (now Jharkhand)

2003-06-19

VISHNUDEO NARAYAN

body2003
Judgment Vishnudeo Narayan, J.-These appeals have been preferred by the appellants named above against the impugned judgment and order dated 17.8.2000 passed by Shri Shyam Kishore Sharma, 3rd Additional Sessions Judge, Hazaribagh in Sessions Trial No. 28 of 1998 whereby and whereunder both the appellants were found guilty for the offence punishable under Section 304(B) read with Section 34 of the Indian Penal Code and they were convicted and sentenced to undergo R.I. for ten years each. 2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 3) of P.W. 5, Vijay Bedia, the informant and brother of Budhni Devi, the deceased of, this case recorded by P.W. 8, S.1. N. Singh Gautam, Kosi Kujju O.P. Camp Orla on 25.3.1997 at the house of the appellant at 10.30 hours regarding the occurrence which is said to have taken place in the night between 24th-25th of March, 1997 at village Orla P.S. Mandu. District-Hazaribagh in which dowry death of Budhni Devi, wife of appellant, Hirwa Bedia was committed and the case was instituted by drawing a formal F.I.R. (Ext. 4) on 25.3.1997 at 17.00 hours at Mandu P.S. which was received in the Court empowered to take cognizance on the following day. 3. The prosecution case, in brief, is that the marriage of Budhni Devi was solemnized with appellant Hirwa Bedia, son of appellant Tilak Bedia one year prior to the occurrence and after the marriage she was leading her conjugal life with appellant Hirwa Bedia in her matrimonial home and during the period of her stay in her matrimonial home she has visited her parent's house twice and on that occasions she had stated to the informant that appellant Hirwa Bedia asks her to demand money from the informant for doing some business and she is intimidated by him to be assaulted for the fulfilment of the said demand and appellant Tilak Bedia also instigates him in giving intimidation to her in respect thereof. It is alleged that the informant used to send her back to her matrimonial home persuading her. It is alleged that the informant went to the house of the appellants on 21.3.1997 on the eve of the 'Holi'to bring her sister Budhni Devi back to his house but returned alone from there as the appellants were not present there. It is alleged that the informant used to send her back to her matrimonial home persuading her. It is alleged that the informant went to the house of the appellants on 21.3.1997 on the eve of the 'Holi'to bring her sister Budhni Devi back to his house but returned alone from there as the appellants were not present there. The prosecution case further is that one unknown man, resident of village-Orla of the appellants came to the house of the informant at 9 o'clock in the morning on 25.3.1997 and gave information regarding the death of Budhni Devi and on this information the informant in the company of his uncle P.W. 6, Ramdeo Bedia and cousin brother P.W. 4, Aklu Bedia went to village Orla and found the dead body of Budhni Devi lying on the cot in the courtyard of her matrimonial home and there was froath oozing out from her mouth and nose and on query he learnt that both the appellants had abused and rebucked her and also intimidated her for the fulfilment of the demand of money and probably she was also assaulted and as a result of which she took poison which led to her death in the night. 4. The appellants had pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and they have been falsely implicated in this case. It has been contended that Budhni Devi has died due to snake bite. 5. The prosecution has in all examined eight witnesses to substantiate the charge levelled against the appellants. P.W. 5 Vijay Bedia is the informant of this case and the brother of the deceased Budhni Devi. P.W. 6, Ramdeo Bedia and P.W. 4 Aklu Bedia are the uncle and cousin brother of the informant. P.W. 3, Jagmohan Bedia is the agnate of the informant and P.W. 2 Ramphal Bedia is a co-villager of the informant. P.W. 7 Dhuan Bedia resident of village Orla of the appellants has turned hostile. P.W. 8, N. Singh Gautam is the I.O. of this case who has prepared the inquest report (Ext. 5) regarding the dead body of the deceased on which P.W.2 and P.W. 3 figured as witness. P.W. 1, Dr. P.W. 7 Dhuan Bedia resident of village Orla of the appellants has turned hostile. P.W. 8, N. Singh Gautam is the I.O. of this case who has prepared the inquest report (Ext. 5) regarding the dead body of the deceased on which P.W.2 and P.W. 3 figured as witness. P.W. 1, Dr. B.K. Verma has conducted the post mortem examination on the dead body of the deceased and the post mortem report per his pen is Ext. 1 in this case. No evidence has been brought on behalf of the defence. 6. The learned court below has placed reliance upon the evidence of P.W. 5 corroborated by P.Ws. 6, 4, 3 and 2 that the death of the deceased occurring otherwise than under normal circumstances in the second year of her marriage as a result of harassment for the fulfillment of demand of dowry and found the appellants guilty for the offence under Section 304 B read with Section 34 of the Indian Penal Code and convicted and sentenced them as stated above. 7. Assailing the impugned judgment as unsustainable and against the weight of the evidence on the record it has been, submitted by the learned counsel for the appellants that the learned court below has committed a manifest error in coming to the finding of guilt of the appellants as there is no material at all on the record to establish the fact that the death of the deceased is otherwise than under normal circumstances and there is also no iota of evidence on the record to prove the fact that the deceased was treated with cruelty in her matrimonial home by the appellants for the fulfillment of demand of dowry immediately soon before her death. It has also been contended that P.W. 8, the medical witness has not stated regarding the cause of death of the deceased in his evidence on oath as well as in the post mortem report and the report of viscera of the deceased has also not been brought on the record to show that the death of the deceased is an unnatural death. It has also been submitted that the medical evidence has not found any external or internal injury on the person of the deceased in course of post mortem examination and in this view of the matter the defence version that the death of the deceased as a result of snake bite is natural, probable and worthy of credit. It has also been contended that there is no legal evidence at all on the record that appellant Hirwa Bedia had demanded any dowry from the deceased or from the informant through her and the demand of some money for doing business by the appellant as per prosecution case does not at all fall within the ambit of dowry as defined under Section 2 of the Dowry Prohibition Act, 1961 and as such there cannot be any presumption under Section 113B against the appellants and the evidence on the record read with the averments made in the fardbeyan (Ext. 3) does not at all make out a case against the appellants under Section 304 B of the Indian Penal Code. Lastly it has been contended that the evidence of P.W. 5, the informant is inconsistent with the prosceution case as averred in his fardbeyan (Ext. 3) and no reliance can be placed upon his evidence which is a result of after thought which equally cast a cloud of suspicion to the very credibility of the warp and woof of the prosecution case and thus the impugned judgment is unsustainable. In respect of his contention the reliance has been placed upon the case of Sunil Bajaj VS. State of M.P. [ 2001 (7) Supreme 456 ]. 8. Refuting the contention advanced on behalf of the appellants it has been submitted by the learned A.P.P. that the death of the deceased is otherwise than under normal circumstances which has taken place within seven years of her marriage and her dead body was found in the matrimonial home of the deceased and there is sufficient evidence on the record that the appellants had subjected her with cruelty and harassment for demand of dowry which led to her unnatural death and the learned court below had properly considered the entire evidence on the record and has rightly come to the finding of the guilt of the appellants and therefore, there is no illegality at all in the impugned judgment requiring an interference therein. 9. 9. It will admit of no doubt that Budhni Devi, the deceased of his case is the lawfully wedded wife of appellant Hirwa Bedia, their marriage having been solemnized one year prior to the occurrence and after the marriage the deceased was leading her conjugal life with her husband appellant Hirwa Bedia in his house in village aria till her death and during the period she has visited her parent's house only twice. According to the prosecution case, appellant Hirwa Bedia used to ask the deceased to demand money from the informant for starting some business and the deceased has reported regarding the demand aforesaid to the informant on both the occasions when she had gone to her parent's house and for that she was intimidated by appellant, Hirwa Bedia at the instance of Tilak Bedia. It is pertinent to mention here that the fardbeyan (Ext. 3) does not whisper regarding the specific amount demanded by appellant Hirwa Bedia through his wife from the informant as well as the date on which the deceased has reported about the said demand to the informant when she had been to her parent's house on two occasions. It is equally relevant to mention here that the informant went to the house of the appellants on 21.3.1997 for taking the deceased back to his house but on that day no such demand was made by the deceased from the informant. The fardbeyan (Ext. 3) also does not disclose the fact that the deceased was physically assaulted by the appellants for the fulfillment of the said demand in her matrimonial home. However, there is no denying the fact that the dead body of Budhni Devi was found lying on the cot in the courtyard of her matrimonial home when the informant reached there on information furnished to him by some unknown person of village aria regarding the death of the deceased. P.W. 1 Dr. B.K. Verma has deposed to have conducted the post mortem examination on the dead body of deceased and he has specifically deposed in the most clear- and unequivocal terms that he found no external injury on the person of the deceased. The medical witness has further deposed that on dissection no internal injury was also found but viscera has been kept reserved for chemical examination to ascertain the cause of death. The medical witness has further deposed that on dissection no internal injury was also found but viscera has been kept reserved for chemical examination to ascertain the cause of death. The medical witness has further deposed that opinion about cause of death of the deceased has been kept reserved till the receipt of the report of the viscera. However, the medical witness has also deposed that it may be the case of poisoning but in para-7 of his cross-examination the medical witness has deposed that it cannot be said with certainty that it is a case of poisoning. The report of viscera has not been brought on the record by the prosecution for the reasons best known to it. Therefore, it appears that the cause of death of the deceased has not been ascertained as per evidence on the record. It is equally pertinent to mention here in view of the medical evidence on the record that the death of the deceased is not a homicidal death. The possibility of suicidal death by taking poison by the deceased herself is also ruled out in this case in the absence of the viscera report. P.w. 8, the I.O. in para-7 of his evidence has deposed not to have found any poison at the place of the occurrence. P.W. 5 the informant has also deposed that no poison or any small bottle of poison was found at the place of the occurrence. Similar is the evidence of P.W. 3 in para-6. The absence of existence of any poison or any container of poison from the place of occurrence is against the authenticity of prosecution case regarding the death of the deceased by taking poison. Therefore, in the facts and circumstances of the case the death of the deceased cannot be totally ruled out due to the snake bite as per the defence version as stated by appellant, Hirwa Bedia in his statement under Section 313 Cr.P.C. But still the fact remains that the death of the deceased stands surrounded by suspicious circumstances which has occurred otherwise than under normal circumstances within seven years of her marriage while she was living with the appellants in her matrimonial home and her body has been found lying on the cot in the courtyard of the appellants. Therefore, the presumption as mandated under Section 113B of the Evidence Act may be drawn in this case regarding the dowry death of the deceased provided it is proved by legal evidence on the record that the deceased was subjected by the appellant to cruelty or harassment soon before her death for or in connection with any demand for dowry. To constitute an offence under Section 304 B the following essentials must be satisfied : (i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (ii) Such death must have occurred within seven years of her marriage; (iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (iv) Such cruelty or harassment must be for or in connection with demand of dowry. It is only when the aforementioned ingredients are established by acceptable evidence such death shall be called dowry death and the husband or his relatives shall be deemed to have caused her death. Section 2 of the Dowry Prohibition Act defines "Dowry" which is quoted below : 2. Definition of 'dowry – In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation 1- * * * Explanation II-The expression "Valuable security" has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860). Explanation 1- * * * Explanation II-The expression "Valuable security" has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860). According to the prosecution case, appellant, Hirwa Bedia had asked the deceased to make a demand for money from the informant for starting some business and for that she was intimidated and appellant Tilak Bedia is alleged to have instigated appellant Hirwa Bedia in respect thereof and the deceased went to her parent's house twice during her married life and on both the occasions as per the prosecution case she had asked the informant regarding the said demand of money by appellant, Hirwa Bedia for starting some business. P.W. 5, the informant in para-1 of his evidence has deposed that the deceased has come to his house twice from her matrimonial home and she has told him that the appellants demand money. He has further deposed that his father is dead and he was short of fund and as such he used to send her back to her matrimonial home persuading her. In para-3 of his evidence P.W. 5, the informant has further deposed that when he had gone on the eve of 'Holi’ to the house of the appellants where the deceased told him that the appellants demand money and they assault her for the fulfillment of the said demand. He has also deposed that the appellants always treat her with cruelty for the fulfillment of demand of dowry. P.W. 8, the I.O. in para-10 of his cross-examination has deposed that P.W. 5, the informant has stated before him in his statement under Section 161 Cr.P.C. that the deceased used to tell him that appellant Hirwa Bedia asked her to bring money from the informant for doing some business and she has been rebuked and intimidated for not bringing the said money. Therefore, the evidence of P.W. 5 appearing in para-3 is inconsistent with the averments made in the fardbeyan (Ext. 3) in respect thereof and the said evidence of P.W. 5 appearing in para-3 equally stands contradicted as per the evidence of P.W. 8, the I.O. referred to above. P.W. 5 in para18 of his evidence has deposed that he cannot say for what purpose the appellants used to demand money. 3) in respect thereof and the said evidence of P.W. 5 appearing in para-3 equally stands contradicted as per the evidence of P.W. 8, the I.O. referred to above. P.W. 5 in para18 of his evidence has deposed that he cannot say for what purpose the appellants used to demand money. Therefore, P.W. 5, the informant is lying on the most material aspect of the prosecution case with mala fide motive and deliberate reasons. P.W. 2 in para-10 of his cross-examination has deposed that the appellants used to demand money for getting license prepared and P.W.5 the informant has told in respect thereof. He has also deposed that P.W. 5 told the said fact to him after this occurrence. P.W. 3 in para-5 of his evidence has deposed that the appellants have never demanded any dowry in his presence and they have also never treated the deceased with cruelty for the fulfillment of any demand of dowry. He has further deposed that the informant used to tell him regarding the torture of the deceased by the appellants for the fulfillment of the demand of dowry. P.W. 4 in para-9 has deposed that the informant has told him that the deceased did not come to her parent's house as the appellants were not present in the house and on that occasion the deceased had made no complaint regarding any demand of dowry. P.W. 6 in para3 has deposed that the informant has told him that appellant Hirwa Bedia demands money for getting a license prepared and for that he treated the deceased with cruelty. P.W. 5, the informant in his evidence on oath has not named the persons of village aria from whom he has learnt regarding the torture perpetrated on the person of the deceased by the appellants. The medical witness has also not found any external or internal injury on the dead body of the deceased. No specific date of demand or the specific amount has been disclosed by P.W. 5, the informant in his evidence on oath. The medical witness has also not found any external or internal injury on the dead body of the deceased. No specific date of demand or the specific amount has been disclosed by P.W. 5, the informant in his evidence on oath. Therefore, the demand of some money for starting business or for preparing the license by the appellants from the informant through the deceased after the marriage cannot be said to have any connection or co-relation with the marriage of the appellant with the deceased and this demand does not fall within the ambit of the definition of dowry as defined under Section 2 of the Dowry Prohibition Act, 1961. The said demand for starting business or for preparing license has definitely no nexus with the marriage of the deceased with the appellant and the said demand has no co-relation with their marriage as well as the said demand is also not consideration for the marriage of the deceased with the appellant. Therefore, in the facts and circumstances of the case and in view of the evidence on the record such demand cannot be connected with dowry as defined under Section 2 of the Dowry Prohibition Act. And last but not the least, to connect the said demand for dowry as per definition of Section 2 of the said Act would be stretching the definition of dowry beyond all proportion. The demand of some money from the informant through the deceased for starting some business by the appellant is only with a view that the appellants should become able to advance in his life for a happy and prosperous conjugal life and the said demand can in no stretch of imagination be termed as dowry. The finding of the learned court below treating the said demand as dowry is untenable and the learned court below is absolutely unjustified in coming to the finding of the guilt of the appellants under Section 304 B of the Indian Penal Code on this score. Furthermore, there is also no iota of any legal evidence on the record to come to the finding of the fact that the deceased was also subjected to cruelty and harassment for the fulfillment of the said demand which does not at all fall within the ambit of dowry. Furthermore, there is also no iota of any legal evidence on the record to come to the finding of the fact that the deceased was also subjected to cruelty and harassment for the fulfillment of the said demand which does not at all fall within the ambit of dowry. Therefore, there is no material on the record to prove the fact that soon before her death the deceased was subjected to cruelty or harassment by the appellants and the said cruelty was in connection with the demand of dowry. Furthermore, there is evidence on the record that appellant, Tilak Bedia was living separately from appellant, Hirwa Bedia. For this the evidence of P.W. 8 in para-9, P.W. 7 appearing in para-5 and P.W. 5 appearing in para-7 is referred to. P.W. 7 has categorically deposed that there was cordial conjugal relationship between the deceased and appellant, Hirwa Bedia and never a demand of dowry was made by the appellants from the deceased. He has also deposed in para-1 of his evidence that there was uproar in the village that the deceased has died of snake bite. The learned court below did not properly, meticulously and objectively considered the evidence on the record and has gravely erred in coming to the finding of the guilt of the appellants and thereby has committed a manifest error in respect thereof. The unnatural death of the deceased in the facts and circumstances of the case cannot be said to be a dowry death in the absence of any legal evidence in this case that soon before her death the deceased was subjected to cruelty or harassment by the appellants for or in connection with the demand of dowry. Therefore, the defence version that the death of the deceased is due to snake bite appears to be natural and probable in the facts and circumstances of the case. 10. The learned court below did not properly and meticulously consider the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants. Therefore, the impugned judgment is unsustainable. 11. There is merit in these appeals and they succeed. The appeals are hereby allowed. The impugned judgment of the learned court below is hereby set aside. The appellants are not found guilty and they are, accordingly, acquitted. Therefore, the impugned judgment is unsustainable. 11. There is merit in these appeals and they succeed. The appeals are hereby allowed. The impugned judgment of the learned court below is hereby set aside. The appellants are not found guilty and they are, accordingly, acquitted. Appellant, Tilak Bedia is discharged from the liability of the bail bonds. Let appellant, Hirwa Bedia be set free forthwith, if not wanted in any other case.