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2021 DIGILAW 573 (PAT)

Bhagwat Sah @ Vagwat Sah v. State Of Bihar

2021-07-02

PRABHAT KUMAR JHA

body2021
JUDGMENT 1. The appellants of Cr.Appeal (SJ) No. 393 of 2020 and Cr. Appeal (SJ) No. 375 of 2020 preferred these appeals against the judgment and order dated 03.01.2020 and 04.01.2020 passed by learned Additional Sessions Judge (F.T.C. I), Banka in Sessions Trial No. 844 of 2007/Trial No. 48 of 2017) arising out of Dhoraiya P.S. Case No. 26 of 2007 by which the learned Additional Sessions Judge (F.T.C. I) convicted the appellants under Section 304(B) of the I.P.C. and sentenced them to undergo Rigorous Imprisonment for seven years. The appellants were also directed to pay a fine of Rs. 20,000/- and in default of payment of fine, the convicts were directed to undergo Rigorous Imprisonment for one year. Therefore, both the appeals are heard together and disposed of by this common judgment. 2. On the basis of fardbeyan of P.W.5 (Tuntun Sah) Dhoraiya P.S. Case No. 26 of 2007 was registered under Section 304(B) and 34 of the I.P.C. P.W.5 in his statement narrated that his sister Geeta Devi (deceased) was married to Bhagwat Sah about six years ago. At the time of marriage, many articles including cash were gifted to Bhagwat Sah. He also paid Rs.2,000/- and Rs.5,000/- to Bhagwat Sah. The informant purchased one katha land in the name of Bhagwat Sah for the purpose of constructing a house in village Gandhigram, PS.-Pathargama, District-Godda but the husband of his sister and other family members continued to torture his sister due to non-fulfillment of additional demand of dowry. They were demanding T.V. and CD. Apanchayati was also held in which the Sarpanch and the District Committee Members took part. On their persuasion, his sister (deceased) was sent to her sasural but after sometime the informant got information from the villager of Hasay that his sister Geeta Devi was done to death by the accused. After having received such information, the informant went to the house of his sister and found her lying dead. A dead body was kept on the cot. There were some signs of assault on her left cheek. A sign of blackness was also present there. The blood and froth were oozing from the mouth and the nose of the deceased. The husband and other in-laws of the deceased were not present in their house. The informant further disclosed that due to non-fulfillment of additional demand of dowry, the accused persons murdered his sister. A sign of blackness was also present there. The blood and froth were oozing from the mouth and the nose of the deceased. The husband and other in-laws of the deceased were not present in their house. The informant further disclosed that due to non-fulfillment of additional demand of dowry, the accused persons murdered his sister. The police took up the investigation after having registered the case and after completion of investigation, submitted charge sheet under Section 304(B) and 34 of the I.P.C. The cognizance of the offence was taken and the case was committed the court of sessions. 3. During course of trial, the prosecution examined as many as eight witnesses. P.W.5 (Tuntun Sah) is the informant of the case. P.W.1 (Pankaj Kumar Jha), P.W.2 (Birbal Sah) who put his signature on the statement of P.W.5), P.W.3 (Shiva Sharma), P.W.4 (Jai Prakash Sah), P.W.6 (Raju Sah), P.W.8 (Sarwan Sah) and P.W.7 (Dr. Sunil Kumar Jha), who held postmortem on the dead body of the deceased. 4. Having considered the evidence of the prosecution witnesses, the learned Additional Sessions Judge (F.T.C. I) found and held the accused guilty under Section 304(B) of the I.P.C. and sentenced them to undergo R.I. for seven years and also to pay a fine of Rs.20,000/-. Being aggrieved by the judgment and order of conviction and sentence, the appellants preferred these appeals. 5. Mr. Ajay Mukherjee, learned counsel for the appellants in both the appeals assailed the judgment and order of conviction and sentence and submitted that the judgment and order is bad in law as well as on facts. The doctor (P.W.7) did not find any external or internal injuries on the dead body. The doctor, however, preserved the viscera but the viscera report was never received in the court. The doctor opined that the deceased died of natural death. The first ingredient to constitute an offence under Section 304(B) of the I.P.C. is that the death of a woman is caused by any burns or bodily injury or occurs otherwise than normal circumstances within seven years of her marriage but in view of the opinion of the doctor, the deceased died of her natural death and there is no material to show that the deceased died of any injury either external or internal or otherwise than normal circumstances within seven years of her marriage. 6. Mr. 6. Mr. Ajay Mukherjee, learned counsel for the appellants, further submits that the basis of the F.I.R. is that the informant's sister was married to Bhagwat Sah about six years ago but due to non-fulfillment of additional demand of dowry, she was done to death. The other witnesses are relatives of the informant. They are residents of different villages situated far away from the village of the appellants. It is further submitted that P.W.5 during course of trial tried to improve the prosecution case by saying that just before the death, Rs.25,000/- was also demanded but the prosecution failed to prove that the marriage of his sister was solemnized six years ago from the date of her death. The prosecution did not bring on record any facts such as Invitation Card of marriage showing the date of marriage nor examined any witnesses of the village of the appellants. The deceased left for her heavenly abode on account of her natural death leaving three children; two sons and one daughter. One of the sons was about seven years on the date of death of the deceased but he was conspicuously kept out and not examined. Other six witnesses also made same and similar statements but from perusal of the statements of all the witnesses, it would appear that they miserably failed to prove the facts that the deceased was being tortured due to non-fulfillment of additional demand of dowry. P.W.5 has stated in his evidence that once a panchayati was held in presence of the Sarpanch and the District Committee Members but neither the Sarpanch or the District Committee Members were examined and thus none of the ingredients constituting an offence under Section 304(B) of the I.P.C. is proved by the prosecution even then the learned Additional Sessions Judge (F.T.C.I) illegally convicted the appellants under Section 304(B) of the I.P.C. and sentenced them. Therefore, the judgment and order of conviction and sentence is not legally sustainable and is fit to be set aside. 7. On the other hand, contending the submissions of learned counsel for the appellants, Mr. Zeyaul Hoda and Mr. Abhay Kumar, learned Additional P.Ps. Therefore, the judgment and order of conviction and sentence is not legally sustainable and is fit to be set aside. 7. On the other hand, contending the submissions of learned counsel for the appellants, Mr. Zeyaul Hoda and Mr. Abhay Kumar, learned Additional P.Ps. submit that of course the doctor opined that the deceased died of natural death but all the witnesses have stated that the accused persons were subjecting the deceased to torture due to non-fulfillment of additional demand of dowry and, therefore, the learned Additional Sessions Judge after having considered the oral evidence of the witnesses found the appellants guilty under Section 304(B) of the I.P.C. and convicted them there under. Therefore, the conviction of the appellants does not require any interference. 8. In order to appreciate the contentions of both sides, it would be appropriate firstly to reproduce Section 304(B) of the I.P.C. to find out whether the prosecution has been able to prove the case that the appellants have committed an offence under Section 304(B) of the I.P.C. and they have been rightly convicted thereunder? 9. Section 304(B) of the I.P.C. is as follows:- (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 subsection, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 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. 10. From bare perusal of Section 304(B) of the I.P.C, it appears that in order to constitute an offence under Section 304(B) of the I.P.C, the main ingredients of the offence are to be established. 10. From bare perusal of Section 304(B) of the I.P.C, it appears that in order to constitute an offence under Section 304(B) of the I.P.C, the main ingredients of the offence are to be established. The main ingredients constituting an offence under Section 304(B) of the I.P.C. are as follows:- (a) soon before the death of the deceased, she was subjected to cruelty and harassment in connection with demand of dowry; (b) the death of a woman was caused by any burns or bodily injury or some other circumstances, which were not normal; (c) such death occurred within seven years from the date of her marriage; (d) the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (e) such cruelty or harassment should be for or in connection with demand of dowry; and (f) it should be established that such cruelty and harassment was made soon before her death. 11. The prosecution in order to prove the charge under Section 304(B) of the I.P.C. has to prove that the harassment or cruelty was related to demand of dowry and such was caused soon before her death and the death was caused due to burns or bodily injury and occurs otherwise than normal circumstances. Only then, it shall be deemed that the prosecution has proved the charge under Section 304B of the I.P.C. and thereafter the burden shifts on the accused persons to prove that the deceased died of natural death. 12. From perusal of the evidence of the doctor (P.W.7), who held the postmortem on the dead body, it is evident that the doctor did not find any external or internal injury on the dead body of the deceased. The viscera of the deceased was preserved and handed over to the police for sending the same to the F.S.L. but till the conclusion of trial, the F.S.L. report was not brought on record. The Investigating Officer was not examined and prosecution did not bring viscera report to show that the deceased died of any poison or otherwise than under normal circumstances. The doctor categorically opined that the death is natural. The Investigating Officer was not examined and prosecution did not bring viscera report to show that the deceased died of any poison or otherwise than under normal circumstances. The doctor categorically opined that the death is natural. Therefore, one of the ingredients that the death of a woman is caused by any burns or bodily injury or occurs otherwise than normal circumstances within seven years of her marriage, in order to prove the charge under Section 304(B) of the I.P.C. has not at all been proved by the prosecution. 13. So far the oral evidence of prosecution witnesses is concerned, P.W.5 is the informant and brother of the deceased. P.W.5 says that the deceased was married to Bhagwat Sah about six years ago from the date of her death. Admittedly, the deceased got three children. P.W.5, of course, says that his sister was subjected to torture due to non-fulfillment of additional demand of dowry. He further says that he paid Rs.2,000/- and thereafter Rs.5,000/- to the husband of the deceased but the husband of the deceased again started demanding T.V. and CD. P.W.5 also says that he purchased one katha land for the husband of the deceased in village Gandhigram situated in Block-Pathargama, District-Godda but this witness did not bring on record any document to show the payment of money or the sale deed to show that the land was purchased in the name of either the deceased or her husband after marriage on account of pressure exerted by the husband and other family members of the husband of the deceased. P.W.5, who is own brother of the deceased, although complained that the appellants were subjecting his sister to all sorts of torture due to non-fulfillment of additional demand of dowry after her marriage with Bhagwat Sah and just before her death but P.W.5 did not complain to any authority nor lodged the case for demand of dowry and torture before death of the deceased. Therefore, I find that the evidence on the point of additional demand of dowry and torture of the deceased after marriage and before death of the deceased is not very much convincing. 14. Therefore, I find that the evidence on the point of additional demand of dowry and torture of the deceased after marriage and before death of the deceased is not very much convincing. 14. P.W.1 (Pankaj Kumar Jha), P.W.2 (Birbal Sah), P.W.3 (Shiva Sharma), P.W.4 (Jai Prakash Sah), PW.6 (Raju Sah) and P.W.8 (Sarwan Sah), who are relatives of P.W.5 (informant) and the deceased, have of course stated in their evidences that the convicts were torturing the deceased due to non-fulfillment of additional demand of dowry but they have not divulged that from whom they came to know about the torture of the deceased. Admittedly it was P.W.5, who informed his relatives (witnesses) about demand of dowry and torture. Therefore, I find that the evidence of all these prosecution witnesses on the point of torture before the death of the deceased is not at all convincing and thus, I find that the prosecution has failed to prove any ingredient to constitute an offence under Section 304B of the I.P.C. against the appellants. Therefore, the judgment and order of conviction and sentence, in my view, is bad, illegal and not sustainable. The same is fit to be set aside. 15. Having considered the facts and discussions made above, both the appeals are allowed. The judgment and order of conviction and sentence dated 03.01.2020 and 04.01.2020 passed by learned Additional Sessions Judge (F.T.C. I), Banka in Sessions Trial No. 844 of 2007/Trial No. 48 of 2017 is set aside. The appellants are on bail. They are discharged from the liabilities of their bail bonds.