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2023 DIGILAW 500 (PAT)

Purushottam Kumar v. State of Biha

2023-04-19

ANJANI KUMAR SHARAN

body2023
ANJANI KUMAR SHARAN, J.:–Heard learned counsel for the appellant as well as learned APP for the State. 2. The present appeal has been preferred against the Judgment and Order of conviction dated 15.12.2020 and sentence dated 21.12.2020 passed by the learned Additional District & Sessions Judge-VII, Vaishali at Hajipur in Sessions Trial No. 194 of 2019 arising out of Rajapakar (Baranti O.P.) P.S. Case No. 163 of 2017, whereby the learned trial court has sentenced him to undergo R.I. for seven years under Section 304-B of the Indian Penal Code, while the other accused, Indu Devi was acquitted giving her benefit of doubt. 3. The factual matrix of the case is that Rajapakar (Baranti O.P.) P.S. Case No. 163 of 2017 was instituted under Section 304-B/34 of the Indian Penal Code against the accused persons, namely, Purushottam Kumar, Sivnath Rai, Indu Devi and Praveen Kumar on 22.11.2017 on the basis of fardbeyan of informant Kapileshwar Singh recorded at 17:00 hours on 19.11.2017 in the verandah of Emergency Ward at Hajipur Sadar Hospital, with the allegation, in succinct that, his daughter Neelam Kumari was married to accused Purushottam Kumar about two and half years back, as per Hindu rites and rituals. After six months of marriage, the informant’s son-inlaw i.e. accused Purushottam Kumar, samdhi Shivnath Rai, samdhin Indu Devi and the Younger brother of the informant’s son-in-law namely Praveen Kumar used to subject informant’s daughter to cruelty for demand of a four wheeler from her father. The F.I.R. further alleges that on 19.11.2017, a resident of informant’s village namely Rajeev Kumar came to Sadar Hospital Hajipur, where he saw informant’s daughter lying dead in verandah of the hospital and informed the informant, who rushed with his family to Sadar Hospital Hajipur and found his daughter Neelam Kumari lying dead on a stretcher, in verandah of Sadar Hospital Hajipur. The F.I.R. also states that the son-in-law of informant or any of his family was not present there. 4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against the accused persons, namely, Purushottam Kumar and Indu Devi under Sections 304-B/34 of the Indian Penal Code. However, two F.I.R. named accused, namely, Shivnath Rai and Pravin Kumar were not sent up for trial. 5. 4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against the accused persons, namely, Purushottam Kumar and Indu Devi under Sections 304-B/34 of the Indian Penal Code. However, two F.I.R. named accused, namely, Shivnath Rai and Pravin Kumar were not sent up for trial. 5. On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against accused persons, namely, Purushottam Kumar and Indu Devi and committed the case to the Court of Sessions and on transfer finally the case came in seisin of the Additional District & Sessions Judge-VII, Vaishali at Hajipur for trial. 6. Charges against the aforesaid accused persons were framed under Sections 304-B/34 of the Indian Penal Code. Charges were read over and explained to them to which they pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution has been able to examine altogether seven prosecution witnesses namely, Amar Nath Rai as PW-1, Ram Ekbal Rai as PW-2, Vikash Kumar as PW-3, Shakuntala Devi as PW-4, Kapileshwar Singh, the father of the deceased as PW- 5 (informant), Shashidhar Kumar as PW-6, Mishri Lal Paswan as PW-7 (Investigating Officer). In documentary evidence, the prosecution has filed and proved several documents. Out of seven prosecution witnesses, P.Ws.1, 2 and 3 were declared hostile. 8. The statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming that the deceased has committed suicide. However, no oral or documentary evidence has been adduced on behalf of the defence. 9. After hearing the parties and perusing the record, the learned trial court passed the impugned Judgment and Order of conviction and sentence as detailed above. 10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convict has preferred this Criminal Appeal. 11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellant beyond all reasonable doubts or not. 12. It is submitted by the learned counsel for the appellant that the learned trial court has erred in convicting the appellant on the basis of contradictory evidences given by the prosecution witnesses against the appellant. 12. It is submitted by the learned counsel for the appellant that the learned trial court has erred in convicting the appellant on the basis of contradictory evidences given by the prosecution witnesses against the appellant. It is further submitted that all the material witnesses are interested witnesses and they are close family members of the deceased. He further submitted that the marriage of the deceased with the appellant was solemnized in the year 2009 i.e. about nine years prior to the occurrence. The son of the deceased is aged about seven years. Exhibit-9, inquest report clearly discloses the cause of death to be hanging, it means police also found that the deceased Neelam Kumari died due to hanging. It is further submitted that the prosecution has not succeeded to prove that the deceased died within seven years of marriage and also not proved that she was tortured for demand of dowry soon before her death. It is further submitted that other ingredients of Section 304-B of the Indian Penal Code does not stand established by the prosecution, hence, the burden does not stand shifted upon the defence under Section 113-B of the Evidence Act. The prosecution has utterly and miserably failed to substantiate the prosecution case against the appellant beyond all reasonable doubt by adducing trustworthy and reliable evidence. Hence, the impugned Judgment and Order of conviction and sentence passed against the appellant by the learned lower court is liable to be set aside. 13. On the other hand, learned APP advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence, submitted that it is an admitted case of the parties that the deceased has died within seven years of her marriage in her matrimonial house in otherwise than under normal circumstances. The prosecution witnesses have supported the occurrence of demand of dowry and subjecting the victim to torture over the said demand soon before her death and after rightly appreciating the facts and evidence available on record, the learned lower court has passed the impugned Judgment and Order of conviction and sentence, and the same is liable to be upheld and this appeal has no substance in it and is liable to be dismissed. 14. 14. In order to seek conviction under Section 304B I.P.C. against a person for the offence of dowry death, the prosecution is obliged to prove that (a) the death of woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances (b) such death should have occurred within seven years of her marriage (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband (d) such cruelty or harassment should be for or in connection with demand of dowry (e) to such cruelty or harassment the deceased should have been subjected to soon before her death. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment over dowry demand can be presumed to be guilty of offence under Section 304-B I.P.C. While as per Section 113-B of the Evidence Act, when the question is whether a person has committed 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 dowry death. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B I.P.C. shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment over dowry demand. Presumption under Section 113-B would be operative only if it shown that soon before death the deceased was subjected to cruelty by her husband or any relative for or in connection with demand of dowry. 15. As already stated above, P.W.1-Amar Nath Ray, P.W.2-Ram Ekbal Rai and P.W.3- Vikash Kumar have declared hostile. From perusal of testimony of Shakuntla Devi, the mother of the deceased Neelam Kumari, who has been examined as P.W.4, it appears that she has stated that Neelam Kumari (deceased) was married to Purushoottam Kumar on 22.05.2015, as per Hindu rites and rituals. She went to her Sasural and a son, namely, Adarsh was born to her after one year of marriage. The in-laws of Neelam Kumari started demanding a four wheeler vehicle in dowry and they used to commit her cruelty due to non-fulfillment of such demand. She went to her Sasural and a son, namely, Adarsh was born to her after one year of marriage. The in-laws of Neelam Kumari started demanding a four wheeler vehicle in dowry and they used to commit her cruelty due to non-fulfillment of such demand. A Panchayati in this regard was held several times, buy they continued to do so. Ultimately, in the year 2017, the in-laws of Neelam caused her death due to non-fulfillment of their dowry demand. The witness further states that the in-laws of her daughter killed her and left the dead body of her daughter at Sadar Hospital, Hajipur. She has further stated that one of her neighbours saw the dead body and informed them on telephone and on reaching the Sadar Hospital, they found the dead body of Neelam lying there. She also states that she had seen a black spot on the neck of her daughter. The witness further states that they themselves performed the cremation of Neelam Kumari. 16. P.W.5-Kapileshwar Singh is the informant and father of the deceased Neelam Kumari. He has stated inter alia that his daughter was killed by the accused persons by strangulating her, brought her to Sadar Hospital and left her lying on the stretcher. He has further stated that one of his villager Rajiv Kumar had come to Hospital, who identified the informant’s daughter and informed him. He also informed him that the in-laws of her daughter were not with the dead body. He saw a black round mark on the neck of his daughter, which clearly shows that his daughter’s death was caused by strangulation. The witness also stated Mohan Rai and Baidnath were present in the panchayati but his dauther’s in-laws did not respect their words. 17. Dr. Shashidhar Kumar has been examined as P.W.6, who conducted the autopsy on the cadaver of the deceased and found the cause of death as Asphyxia. The Investigating Officer of the case, namely, Mishrilal Pawan, Sub-Inspector has come forward to support the prosecution as P.W.-7. He in his deposition but for deposing that he prepared the inquest report, recorded the fardbeyan of the informant, inspected the place of occurrence but not deposed anything substantive which is relevant for the present purposes. 18. The Investigating Officer of the case, namely, Mishrilal Pawan, Sub-Inspector has come forward to support the prosecution as P.W.-7. He in his deposition but for deposing that he prepared the inquest report, recorded the fardbeyan of the informant, inspected the place of occurrence but not deposed anything substantive which is relevant for the present purposes. 18. From perusal of the record, it appears that P.W.4 and P.W.5 have deposed that a Panchayati was held but the in-laws of the deceased did not respect their words. But the prosecution has failed to bring on record any chit of paper in this regard. It is also relevant to mention here that P.W.5 has stated that Mohan Rai and Baidnath were present in the panchayati, but none of them have been examined as witnesses. He has also stated that one of his villager Rajiv Kumar had come to Hospital, who identified the informant’s daughter and informed him but the said Rajiv Kumar has also not been examined in this case. P.W.5 in his statement before the Court has stated that another daughter Poonam was married in the same village and next door neighbour and has come to hospital. The own sister of the deceased has not disclosed anything about the demand and torture at the hands of accused person. She was the best witness and at least the deceased could have certainly disclosed the demand and torture to her sister Poonam. She was not examined in court. The prosecution has failed to bring on record any evidence which shows that soon before her death there was any demand of dowry or she was tortured before the death. In the fardbeyan, nothing has been said about any Panchayati held in between the parties but neither any document in this regard was brought on record nor the persons present in the said Panchayati were examined. 19. The Hon’ble Apex court in Major Singh & Another Vs. State of Punjab reported in (2015) 5 Supreme Court Cases 201 has been pleased to rule that when there is no evidence as to demand of dowry or cruelty and that deceased was subjected to dowry harassment “soon before her death” by the appellant-accused parents-in-law conduct of father and brother of deceased, not natural, the conviction of the appellant under Section 304-B cannot be sustained and is liable to be set aside. It has further been pleased to rule that to attract conviction under Section 304-B I.P.C. prosecution should adduce evidence to show that “soon before her death”, the victim was subjected to cruelty or harassment. There must always be a proximate and live link between effects of cruelty based on dowry demand and death concerned. 20. Hon’ble Apex Court in Baijnath & Ors. Vs. State of Madhya Pradesh (2017) 1 Supreme Court Case 101 has been pleased to rule that mere factum of unnatural death in matrimonial home within seven years of marriage not sufficient to convict accused under Sections 304-B and 498-A I.P.C. Only when prosecution proves beyond doubt that deceased was subjected to cruelty/harassment in connection with dowry demand soon before her death, presumption under Section 113-B can be invoked. Section 113-B of the Act enjoins a statutory presumption as to dowry death. 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 harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. A conjoint reading of these three provisions, thus predicates 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. 21. 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. 21. In the aforesaid facts and circumstances of the case and for the reasons enumerated in the foregoing paragraph, I find and hold that the prosecution has utterly and miserably failed to bring home the charges levelled against the appellant beyond all reasonable doubts by adducing convincing, cogent, consistent and wroth credence ocular and documentary evidence. Hence, the impugned Judgment and Order of conviction and sentence passed by learned lower court is set aside and the appellant is acquitted of the charges levelled against him. As the appellant is in custody, he is directed to be released forthwith, if not wanted in any other case. Accordingly, this Criminal Appeal is allowed.