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2020 DIGILAW 172 (JHR)

Bijay Lal Baranwal v. State of Jharkhand

2020-01-28

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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ORDER : Shree Chandrashekhar, J. On the basis of the written report dated 19.09.2006 given by Gopal Prasad Burnwal to the police, Jharia P.S. Case No.332 of 2006 has been registered against Bijay Lal Burnwal, who is husband of the victim lady, Binay Kumar Burnwal, her younger brother-in-law and Siya Devi, her mother-in-law, under section 304-B of the Indian Penal Code and section 3/4 of the Dowry Prohibition Act, 1961. 2. In S.T. Case No.108 of 2007, the appellant-Bijay Lal Burnwal who is husband of the deceased has been convicted and sentenced to undergo R.I for life under section 304-B of the Indian Penal Code and the appellant nos.2 and 3 have been convicted and sentenced to R.I for 10 years under section 304-B of the Indian Penal Code. Further, for the offence under section 3/4 of the Dowry Prohibition Act, the appellants are convicted and sentenced to R.I for 5 years and fine of Rs.2,000/- each. 3. The informant of this case is the father of Neelam Devi, the deceased. In his written report the informant has stated that marriage of his daughter was solemnized with Bijay Lal Burnwal in the year 2003 and after the marriage the accused persons were harassing her for demand of one colour television, one bed and Rs.10,000/- as dowry. On one occasion when he had gone to meet his daughter he has seen mark of belt on abdomen of his daughter. On 19.09.2006, on an information he had gone to the house of his daughter where he found that the accused persons had killed her and hanged her with a rope in the kadi giving it a colour of suicide. The informant has been examined as P.W.8. In the court he has deposed that the accused persons were harassing and torturing his daughter in connection to demand of a colour television, one bed and Rs.10,000/-and they were threatening to kill her. He has spoken about injury mark on his daughter's abdomen. He has stated that he received an information on 19.09.2006 about murder of his daughter. The wife of the informant has been examined as P.W.9. She has stated in the court that when her daughter came to her house the second time, she had informed her about marpit committed by her husband and his family members for demand of a colour television, one bed and Rs.10,000/-. The wife of the informant has been examined as P.W.9. She has stated in the court that when her daughter came to her house the second time, she had informed her about marpit committed by her husband and his family members for demand of a colour television, one bed and Rs.10,000/-. She has further stated that whenever her daughter came to her house she had informed her about harassment by her family members. She has also stated about a telephonic information about murder of her daughter. The brother of Neelam Devi is P.W.7. He has also stated about demand of colour television, bed and Rs.10,000/-by the accused persons and harassment and torture of his sister by them in connection to demand of dowry. The maternal aunt of Neelam Devi who has been examined as P.W.10 has also stated about demand of dowry by the accused persons. 4. The essential ingredients for constituting the offence under section 304-B of the Indian Penal Code are; (i) death within 7 years of marriage, (ii) death caused by any burns or bodily injury or otherwise than under normal circumstances, and (iii) cruelty or harassment by the husband or any relative of the husband for or in connection with any demand for dowry soon before the death. Section 304-B has been incorporated in the Indian Penal Code by Act of 1986 and a corresponding amendment was made in the Indian Evidence Act, 1871 by incorporating section 113-B. The language employed in section 304-B IPC and section 113-B of the Evidence Act would reveal a common point of reference in both the provisions; the woman must have been “soon before her death” subjected to cruelty or harassment for or in connection with the demand of dowry. In “Baijnath and Others Vs. State of Madhya Pradesh” reported in (2017) 1 SCC 101 , the Hon'ble Supreme Court has dealt with the presumption under section 113-B of the Evidence Act, 1872 and proof of cruelty or harassment, thus; “29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harrassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith. 30. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113-B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the abovereferred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.” 5. The death of Neelam Devi has occurred within 7 years of her marriage is not disputed by the defence and she has died in otherwise than normal circumstances is proved by the prosecution. Dr. Swapan Kumar Saraf-P.W.11, who has conducted the post-mortem examination on 19.09.2006 at 3.30 p.m., has stated that the death has been caused due to asphyxia as a result of hanging. He has found ligature mark and mark of rope around the neck of Neelam Devi. In his cross-examination the doctor has stated that death has been caused due to hanging and usually hanging is suicidal. He has found ligature mark and mark of rope around the neck of Neelam Devi. In his cross-examination the doctor has stated that death has been caused due to hanging and usually hanging is suicidal. Though we have serious reservations on opinion of the doctor, which can be inferred as if Neelam Devi has committed suicide, for the reason that several injuries have been found on her elbow and ankle which may have been caused due to struggle by her but this aspect of the matter is not so relevant because we find that Neelam Devi has committed suicide is also the defence set up by the appellants. Even otherwise, it is proved by the prosecution that Neelam Devi has not died under normal circumstances. 6. To prove that Neelam Devi soon before her death was subjected to harassment and torture for or in connection to demand of dowry, the prosecution has examined P.W.7, P.W.8, P.W.9 and P.W.10. In his evidence P.W.7 has stated that his sister had informed him over telephone about the demand of dowry by the accused persons. His evidence on this aspect is completely cryptic and he has not spoken about threat by the appellants to kill her as his father has claimed. P.W.8 has stated that the accused persons were harassing and torturing his daughter and they were threatening to kill her if their demand of dowry was not fulfilled. In his cross-examination, he has stated that he does not remember the date of marriage of his daughter and though his daughter came to his house 2-4 times but the date and year of her visit also he does not remember. In his examination-in-chief, he has nowhere stated that his daughter has informed him about her harassment and torture in connection to demand of dowry. The mother of Neelam Devi has stated that when her daughter came to her house the second time she had informed her about demand of a colour television, one bed and Rs.10,000/-by the accused persons. But, in her cross-examination she has admitted that she does not remember when she met her daughter after her marriage. She has also stated that her daughter has told her about marpit but no report was lodged with police in this regard and she has not seen the accused persons assaulting her daughter. But, in her cross-examination she has admitted that she does not remember when she met her daughter after her marriage. She has also stated that her daughter has told her about marpit but no report was lodged with police in this regard and she has not seen the accused persons assaulting her daughter. It is important to keep in mind that the father of Neelam Devi has admitted that marriage of his daughter was performed in a dharmshala and her mother has admitted that the husband of her daughter, the appellant no.1, used to visit her house to take her daughter to her matrimonial home. This aspect of the matter is leaning towards the accused-appellants. Therefore, the evidence of the prosecution witnesses on harassment and torture of Neelam Devi soon before her death needs to be examined in the context of other evidences. 7. The appellants have set up a defence that Neelam Devi was not able to bear a child and she had recently suffered miscarriage and that was the reason in a state of depression she has committed suicide. The appellants have examined Dr. D.K. Jha-D.W.1 who has testified in the court that he has treated Neelam Devi and recently she had suffered miscarriage. In a different context, but the mother of Neelam Devi has also stated about miscarriage of her daughter. 8. There is serious controversy as to how an information to the police regarding the incident has reached. P.W.7, P.W.8 and P.W.9 have stated that they received a telephonic information about murder of Neelam Devi. The informant has stated that by the time he reached the marital home of his daughter her body was taken away for post-mortem examination. He has stated that he met P.W.6 in the post-mortem house. P.W.6 has stated that he received a call from the police regarding death of his niece and thereafter he has informed the family members of Neelam Devi. P.W.9 has stated in her cross-examination that when she reached the post-mortem house with her husband she has not found any one from her family present there. P.W.6 has stated that he received a call from the police regarding death of his niece and thereafter he has informed the family members of Neelam Devi. P.W.9 has stated in her cross-examination that when she reached the post-mortem house with her husband she has not found any one from her family present there. A written report was given by the informant to the police on the basis of which Jharia P.S. Case No. 332 of 2006 has been lodged, but from the aforesaid facts in the testimony of the prosecution witnesses it is clear that an information about death of Neelam Devi was already received by the police and her dead body was taken for post-mortem examination. However, by that time a First Information Report was not lodged by the police. In their cross-examination, the prosecution witnesses have admitted that at the first instance they did not state before the police about demand of dowry by the accused persons and no independent witness has come forward to support the prosecution's case. It is also relevant to record that P.W.1, P.W.2 and P.W.3 have not supported the prosecution and P.W.4 has stated that relation between Neelam Devi and her husband was good and he has not seen any quarrel between them. P.W.5, who is step-brother of the husband of Neelam Devi, has not supported the prosecution and he has been declared hostile at the instance of the prosecution. 9. On such evidence, we find that the prosecution has failed to establish that soon before her death Neelam Devi was subjected to harassment and torture in connection to demand of a colour television, one bed and Rs.10,000/- by the appellants. 10. The presumption under section 113-B of the Indian Evidence Act, 1871 would arise and the burden would shift on the accused persons only after the prosecution has proved such facts which would constitute essential ingredients under section 304-B of the Indian Penal Code, however, in the present case the prosecution has failed to establish that soon before her death Neelam Devi was subjected to harassment and torture in connection to demand of dowry and, therefore, we hold that the prosecution has failed to prove the charge under section 304-B of the Indian Penal Code against the appellants. The charge framed under section 3/4 of the Dowry Prohibition Act against the appellants has also not been proved by the prosecution. 11. The charge framed under section 3/4 of the Dowry Prohibition Act against the appellants has also not been proved by the prosecution. 11. Accordingly, conviction of the appellants, namely, Bijay Lal Burnwal, Binay Kumar Burnwal and Siya Devi for the aforesaid offences is set-aside. 12. The appellant no.1, namely, Bijay Lal Burnwal has been released on serving the sentence with remission, however, the appellant no.2, namely, Binay Kumar Burnwal and the appellant no.3, namely, Siya Devi, who are on bail, shall stand discharged of liability of the bail-bonds furnished by them. 13. Cr. Appeal (DB) No.614 of 2010 is allowed. 14. Let the lower-court records be transmitted to the court concerned, forthwith.