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2024 DIGILAW 1123 (PAT)

Anup Kumar v. State of Bihar

2024-11-26

SANDEEP KUMAR

body2024
Sandeep Kumar, J.—Heard the learned counsel for the appellant and the learned APP for the State. 2. This is an appeal against the order and judgment of conviction dated 29.11.2018 and order of sentence dated 30.11.2018 passed by the learned Additional Sessions Judge-VI, Ara, Bhojpur in Sessions Trial No. 334/2013 by which the appellant has been convicted under Section 498A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 1,000/- and in default of which further undergo rigorous imprisonment for 15 days and further conviction for offence punishable under Section 304(B) of the Indian Penal Code and sentenced to undergo rigorous imprisonment of seven years and further conviction for offence punishable under Section 201 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of one year and also pay fine of Rs. 500/- and in default of which further undergo R.I. for 5 days. 3. The prosecution case in brief is that the marriage of the daughter of the informant namely, Prity Devi was solemnized with Anup Kumar (appellant) in the year 2007. After the marriage, she was enjoying her conjugal life but after some time all the accused persons including the appellant started demanding motorcycle and gold chain and upon non-fulfillment of demand of dowry, accused persons used to assault and torture the daughter of the informant physically and mentally. In the meantime, his daughter shifted to Gujarat with his son-in-law from where she came back to her home in September 2011. On 08.10.2011, the informant came to know from his nephew namely Ashok Kumar by telephone that all the accused persons including this appellant have murdered his daughter and have thrown her dead body in the Sone river with the help of the villagers. 4. On the basis of the written report of the informant Ram Pukar Prasad, Koilwar P.S. Case No.153 of 2011 dated 8.10.2011 was registered for the offence under sections 498-A, 304-B, 120-B, 201 and 34 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act against seven accused persons including the present appellant and on completion of investigation, the police submitted charge-sheet against the appellant and others bearing charge-sheet No.225/2011 dated 05.12.2011. On the statement of witnesses recorded under section 161(3) of the Code of Criminal Procedure and the Chief Judicial Magistrate, Ara took cognizance of the offences punishable under Section 498-A, 304-B, 120-B, 201 and 34 of the Indian Penal Code and section 3/4 of the Dowry Prohibition Act vide order dated 23.01.2012 and the case was committed to the court of Sessions and assigned to Additional Sessions Judge VI, Bhojpur, Ara and charges were framed against the appellant and other two accused. 5. P.W-1 is one Ashok Kumar who claims that the deceased Prity Devi was his cousin (mameri) sister. He has said that after marriage, the deceased stayed in her matrimonial home for 2–3 years but after that she was being tortured by Anup Kumar(appellant), Lal Muni Devi and Kundan Kumar for demand of motorcycle and gold chain. Thereafter, the appellant Anup Kumar took Prity Devi (deceased) to Gujarat. He says that the deceased was killed by the accused persons and her dead-body was kept in a gunny bag and the same was thrown in the Sone river and he had informed his uncle (mama) about the death of Prity Devi hearing which the informant came there and lodged the F.I.R. In his cross-examination, he has said that Anup Kumar after 3-4 years of marriage, has gone to do a job and after one year of getting the job, he took Prity Devi to Gujarat and there they stayed for one year. In between, they used to visit the village also. I used to meet Prity Devi when she was visiting her village and during her visit, she used to visit her parental home also. He further says that Prity Devi had stayed in Gujarat for 6-7 months with her husband and he did not talk to her during that period and after her return also, he did not talk to her. He in his cross-examination has said that the marriage of the appellant and the deceased was solemnized in a temple as both the parties were unable to spend money. The marriage was solemnized with the consent of the parties happily. He further says that when he saw the accused persons taking the dead-body in a gunny bag, he did not inform the Mukhiya, Sarpanch, Chaukidar and Police. He did not follow them as to where they were taking the dead-body. 6. The marriage was solemnized with the consent of the parties happily. He further says that when he saw the accused persons taking the dead-body in a gunny bag, he did not inform the Mukhiya, Sarpanch, Chaukidar and Police. He did not follow them as to where they were taking the dead-body. 6. P.W-2 Prabhawati Devi is the mother of P.W-1 and Ram Pukar Prasad (informant) is her cousin (mausera) brother. She has said that one motorcycle and one gold chain was demanded by the accused persons and for dowry they had killed the deceased and the dead-body was disposed off in Sone river. She supports the story of the appellant and the deceased Prity Devi going to Gujarat to earn their livelihood and staying there. She says that she had not seen the occurrence with her own eyes, she had only seen the dead-body being taken away by the accused persons from her Darwaja. She did not inform the police that the dead-body was being taken by the accused persons in a gunny bag. 7. P.W-3 is Alok Kumar, the cousin brother of deceased Prity Devi. He also says that for demand of dowry i.e. gold chain and motorcycle, deceased was killed by the accused persons. After getting the information when he reached the place of occurrence, the informant and others were there and they tried to search the dead-body but they could not succeed. 8. P.W-4 is the informant of the case and he is the father of the deceased. He has also supported the demand of dowry i.e. gold chain and motorcycle. He was informed by one Ashok Kumar (P.W-1) that his daughter was killed and the dead-body was disposed off in the Sone river. In his cross-examination, he says that his daughter was stayed in Gujarat for four years and she never visited her parental house. The informant never talked to her on phone or visited Gujarat. He says that he was informed by Ashok Kumar (P.W-1) about the occurrence and thereafter he went to his daughter’s village and thereafter filed a case. He in his cross-examination admits that because of the poor financial status both the parties, the marriage was solemnized in a temple with the consent of the parties. He also admits in his cross-examination that he had not informed about the demand i.e. gold chain and motorcycle to the police or the Mukhiya. He in his cross-examination admits that because of the poor financial status both the parties, the marriage was solemnized in a temple with the consent of the parties. He also admits in his cross-examination that he had not informed about the demand i.e. gold chain and motorcycle to the police or the Mukhiya. He only informed the police about the demand of dowry after the death of his daughter. 9. P.W-5 is the I.O. of the case. He had taken the statement of Ashok Kumar/P.W.-1 and Prabhawati Devi/P.W.-2 and had seized the cycle of the appellant. In his deposition, he says that nothing suspicious was recovered from the place of occurrence. He also says that Prabhu and Ghanshyam Mahto who was the neighbours of the appellant were not examined by him. He further says that informant had given a statement that Lal Muni Devi and Kundan Kumar also started demanding motorcycle and gold chain but they had not said that Lal Muni Devi and Kundan Kumar used to assault the deceased for dowry. 10. It has been submitted by the learned counsel for the appellant that from reading of the F.I.R., it appears that the deceased and the appellant were living in Gujarat where the appellant was working. The deceased got ill and was being treated in Ahmadabad and when she came back to Haripur, she, on the date of death i.e. 08.10.2011 complained about stomach pain. She was taken to local doctors and local doctors referred her to Ara for better treatment, but she died on the way. This fact has been admitted by the P.W-1. 11. It is the further contention of the learned counsel for the appellant that the marriage of the deceased with the appellant was dowry-less marriage as both the parties came from humble background and the marriage was solemnized in a temple. 12. It has also been submitted by the learned counsel for the appellant that P.W-2 was not examined by the police. P.W-2 in her deposition has said that she informed her son P.W-1 about the occurrence who thereafter informed to P.W-4. P.W-2 has also stated that the deceased Prity was taken to her parent’s house thereafter this occurrence has taken place and she has not seen the deceased being killed by the accused persons. P.W-2 in her deposition has said that she informed her son P.W-1 about the occurrence who thereafter informed to P.W-4. P.W-2 has also stated that the deceased Prity was taken to her parent’s house thereafter this occurrence has taken place and she has not seen the deceased being killed by the accused persons. She had witnessed that the dead body of the deceased was being taken away by the accused persons from her Darwaja. 13. It has further been argued by the learned counsel for the appellant that the deceased was being tortured for demand of dowry just before her death/ killing has not been proved by the prosecution and therefore, the presumption will also not be applicable in the facts of the case. 14. It has also been submitted by the learned counsel for the appellant that there is delay in sending the F.I.R. to the Magistrate Court creates doubt in the prosecution case. The date of occurrence is 08.10.2011 and the F.I.R. is said to have been registered on 08.10.2011 but the same has been sent to the concerned Magistrate Court on 10.10.2011, though the place of occurrence is at a distance of 7 Kms. 15. Learned counsel for the appellant has further submitted that the demand of dowry has not been proved by the prosecution and there is no torture or demand of dowry before the death of the deceased took place. 16. Learned APP for the State; Sri Jharkhandi Upadhyay has vehemently opposed the appeal and has submitted that the deceased was tortured for demand of dowry i.e. gold chain and motorcycle and she was killed for the same and her dead-body was thrown in the Sone river, therefore, the conviction of the appellant may be sustained. 17. I have considered the submissions of the parties. 18. From the evidence of the prosecution witnesses, it has come that the marriage of the deceased with the appellant was solemnized in a temple as both the parties were very poor. There was no dispute at the time of marriage between the parties and there is no mention of any exchange of dowry between the parties at the time of marriage. It has further come in the evidence of the witnesses that the appellant went to Gujarat to earn his livelihood and after some time, he took the deceased Prity Devi to Gujarat and they were living there. It has further come in the evidence of the witnesses that the appellant went to Gujarat to earn his livelihood and after some time, he took the deceased Prity Devi to Gujarat and they were living there. P.W-4, the informant who is the father of the deceased has said that he did not talk to his daughter while she was in Gujarat for 3–4 years. He further says that he did not talk to her when she returned. The consistent evidence of the witnesses is that the dead-body of the deceased was thrown in the Sone river which was never recovered. 19. The Hon’ble Supreme Court in the case of Shoor Singh vs. State of Uttarakhand, 2024 SCC OnLine SC 2595 while considering the appeal of the accused persons in a dowry death case has held as follows:— 12. To constitute a ‘dowry death’, punishable under Section 304-B IPC, following ingredients must be satisfied: i. death of a woman must have been caused by any burns or bodily injury or it must have occurred otherwise than under normal circumstances; ii. such death must have occurred within seven years of her marriage; iii. soon before such death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and iv. such cruelty or harassment must be in connection with any demand for dowry. The phrase ‘otherwise than under normal circumstances’ is wide enough to encompass a suicidal death. 13. When all the above ingredients of ‘dowry death’ are proved, the presumption under Section 113-B of the Evidence Act is to be raised against the accused that he has committed the offence of ‘dowry death’. What is important is that the presumption under Section 113-B is not in respect of commission of an act of cruelty, or harassment, in connection with any demand for dowry, which is one of the essential ingredients of the offence of ‘dowry death’. The presumption, however, is in respect of commission of the offence of ‘dowry death’ by the accused when all the essential ingredients of ‘dowry death’ are proved beyond reasonable doubt by ordinary rule of evidence, which means that to prove the essential ingredients of an offence of ‘dowry death’ the burden is on the prosecution. 14. The presumption, however, is in respect of commission of the offence of ‘dowry death’ by the accused when all the essential ingredients of ‘dowry death’ are proved beyond reasonable doubt by ordinary rule of evidence, which means that to prove the essential ingredients of an offence of ‘dowry death’ the burden is on the prosecution. 14. In the instant case, it is not in dispute that the deceased died otherwise than under normal circumstances within seven years of her marriage. However, the issue between the parties is about her being subjected to cruelty or harassment by her husband or his relative, soon before her death, in connection with any demand for dowry. 15. The testimonies of PW-1, PW-2 and PW-3 do not indicate that any demand for dowry was made by the accused-appellants either before or at the time of marriage of the deceased with their son. Further, there is no evidence that the accused appellants directly demanded a motorcycle or cash from any of the above witnesses. In fact, evidence is to the effect that the deceased had informed PW-1 and PW-2 on 4.1.2007 and 11.1.2007 about the demand for a motorcycle and cash. Further, from the deposition of PW-1 and PW-2, it appears that the aforesaid demand was not in connection with marriage but as a mark of celebration on birth of a male child. 20. The Hon’ble Supreme Court in another case of dowry death in the case of Chabi Karmakar & Ors vs. State of West Bengal, 2024 SCC OnLine SC 2433 has held as follows:— 6. After going through the evidence of PW-1, PW-3, PW-4 and P-16 (who are the brother, father, mother and cousin of the deceased respectively), it becomes clear that the deceased faced cruelty and harassment at the hands of her husband (appellant no. 2) which compelled her to commit suicide. However, these witnesses did not state that such cruelty and harassment was in connection with the demand for dowry. With respect to the demand for dowry, they have just made some general statements which are not sufficient to convict the appellants under section 304B of IPC. 7. Trial Court raised a presumption under section 113B of Evidence Act to convict the appellants under Section 304B of IPC. With respect to the demand for dowry, they have just made some general statements which are not sufficient to convict the appellants under section 304B of IPC. 7. Trial Court raised a presumption under section 113B of Evidence Act to convict the appellants under Section 304B of IPC. The High Court did not go into the question of whether the trial court was right in relying upon section 113B of the Evidence Act. In Charan Singh alias Charanjit Singh vs. State of Uttarakhand, 2023 SCC OnLine SC 454, where there were allegations against the husband that he was subjecting the deceased therein on the demand of a motorcycle and some land, this Court in relation to Section 113B of Evidence Act and section 304B of IPC, had noted that: “21…………………It is only certain oral averments regarding demand of motorcycle and land which is also much prior to the incident. The aforesaid evidence led by the prosecution does not fulfil the pre-requisites to invoke presumption under Section 304B IPC or Section 113B of the Indian Evidence Act…… 22. XXXXXXX 23. On a collective appreciation of the evidence led by the prosecution, we are of the considered view that the prerequisites to raise presumption under Section 304B and Section 113B of the Indian Evidence Act having not being fulfilled, the conviction of the appellant cannot be justified. Mere death of the deceased being unnatural in the matrimonial home within seven years of marriage will not be sufficient to convict the accused under Section 304B and 498A of IPC.” Similarly, in the case at hand, it has not been proved by the prosecution that the deceased was subjected to cruelty soon before her death in connection with the demand of dowry and hence we are of the opinion that this is not a case of dowry death under Section 304B of the Penal Code, 1860. PW-1 and PW-3 had only stated that deceased used to tell them about her torture. PW-4 (mother of the deceased) did not speak about any demand of dowry after marriage. Moreover, this witness had said that appellant no. 2 used to assault her deceased daughter as the deceased had objections to the illicit relation of appellant no. 2 with another woman. PW-4 (mother of the deceased) did not speak about any demand of dowry after marriage. Moreover, this witness had said that appellant no. 2 used to assault her deceased daughter as the deceased had objections to the illicit relation of appellant no. 2 with another woman. PW-16, who is the cousin of the deceased, had deposed in court almost a year after the testimony of PW-1, 3 & 4 and his deposition regarding the physical assault of the deceased in connection with the demand of dowry is also not believable. Considering the aforesaid, in our view, the trial court erred in raising a presumption under Section 113B of the Indian Evidence Act, even though the demand for dowry was not established. 8. On the other hand, the learned counsel for the State of West Bengal would rely on two judgments of this Court, seeking appellants’ conviction under Section 304B of IPC, both of which were decided by Three Judges’ Bench of this Court : Rajinder Singh vs. State of Punjab, (2015) 6 SCC 477 and State of Madhya Pradesh vs. Jogendra (2022) 5 SCC 401 . The facts in Rajinder Singh (Supra) were entirely different. In that case, the deceased had died due to consumption of poison and there were specific allegations against in-laws in the form of evidence from the deceased's father, who had given credible evidence that the in-laws were demanding money for the construction of the house. There was also evidence of giving a she-buffalo to pacify the in-laws. Father of the deceased therein further deposed how the Sarpanch and Ex-Sarpanch of their village went to the matrimonial home of the deceased for reconciliation where the father of deceased had promised to give money after harvest of crops. Jogendra (supra) was decided by taking into account the peculiar facts of that case where the evidence of PW-1 therein contained specific allegations of constant demand for dowry. It was stated that deceased was asked to raise Rs. 50,000 for the construction of house. He further stated that there was even an attempt by the ‘people of society’ to settle the matrimonial discord between the parties. In paragraph 9 of Rajinder Singh (supra), this Court had discussed the ingredients of Section 304B of IPC as follows: “9. The ingredients of the offence under Section 304-B IPC have been stated and restated in many judgments. He further stated that there was even an attempt by the ‘people of society’ to settle the matrimonial discord between the parties. In paragraph 9 of Rajinder Singh (supra), this Court had discussed the ingredients of Section 304B of IPC as follows: “9. The ingredients of the offence under Section 304-B IPC have been stated and restated in many judgments. There are four such ingredients and they are said to be: (a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances; (b) such death must have occurred within seven years of her marriage; (c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (d) such cruelty or harassment must be in connection with the demand for dowry.” The evidence placed before us, in the case at hand, is not sufficient to prove the fourth ingredient i.e. cruelty or harassment in connection with the demand for dowry, as laid down by the abovementioned case. 21. The Hon’ble Supreme Court in the case of Dilawar Singh vs. State of Delhi reported in (2007) 12 SCC 641 has held that unexplained delay in lodging the FIR is fatal to the prosecution. “9. In criminal trial one of the cardinal principles for the court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.” 22. The Hon’ble Supreme Court in the case P. Rajgopal vs. State of Tamil Nadu reported in (2019) 5 SCC 403 , has held as follows:— “12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. The Hon’ble Supreme Court in the case P. Rajgopal vs. State of Tamil Nadu reported in (2019) 5 SCC 403 , has held as follows:— “12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty-bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely.” 23. Similarly, the Hon’ble Supreme Court in the case of State of Punjab vs. Ramdev Singh reported in (2004) 1 SCC 421 has held as follows:— “Delay in lodging the FIR cannot be used a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in the prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the same cannot by itself be a ground for disbelieving and discarding the entire prosecution version....” In the present case also, there is a long delay in lodging the complaint i.e., the delay of about nine months and it appears that from the conduct of the victim/informant and from her deposition, it appears that the victim had eloped with the appellant and thereafter, she has returned home. The complaint was filed after nine months as an afterthought by the P.W. 6 and from the reading of the evidence of the victim, it appears that it is a case of elopement and consensual sex and for such an occurrence, the appellant cannot be convicted. 24. In the present case, the undisputed facts are that the deceased was married to the appellant in a dowry less marriage. 24. In the present case, the undisputed facts are that the deceased was married to the appellant in a dowry less marriage. The marriage was solemnized in a temple because both the parties came from humble background. The deceased and the appellant stayed in Gujarat where the appellant was working. There is no evidence of torture and demand of dowry i.e. gold chain and motorcycle before the registration of F.I.R. Some days before her death, the deceased had come back along with her husband to her matrimonial home. Prior to the disappearance of the deceased, no police case in respect of harassment of the deceased for any reason whatsoever has been filed. There is no evidence of demand of dowry before or after the marriage and there is no evidence that the deceased was physically assaulted by the appellant or others for demand of dowry or cash. 25. Though the occurrence has taken place on 08.10.2011 but the F.I.R. has been received in the local police station on 10.10.2011 and this creates a doubt over the truthfulness of the F.I.R. when the F.I.R. was sent to the police station after such delay though the police station is only at a distance of 7 Kms. The delay in sending the F.I.R. to the Magistrate Court concerned is also fatal to the prosecution case. 26. In the present case though the death of the deceased is under abnormal circumstances and the corpus delicti has not been recovered but except for that the prosecution has not been able to prove the torture of the deceased for demand of dowry, unnatural death of the deceased and soon before her death that she was subjected to cruelty, assault etc., for demand of dowry. 27. Moreover, the evidence of none of the witnesses including that of the informant (P.W-4) gives the exact details of date of marriage of the appellant. The informant and the other witnesses have simply said that the marriage was solemnized in the year 2007. They have not given the exact details of the date of marriage etc., in my opinion, the prosecution has not been able to prove that the deceased was killed by any bodily injury or the death of the deceased has otherwise occurred under abnormal circumstances and hence such death has happened within 7 years of the marriage. They have not given the exact details of the date of marriage etc., in my opinion, the prosecution has not been able to prove that the deceased was killed by any bodily injury or the death of the deceased has otherwise occurred under abnormal circumstances and hence such death has happened within 7 years of the marriage. The prosecution has not been able to prove that soon before her death, the deceased was subjected to cruelty or harassment by the appellants or other co-accused in connection with demand of dowry. As the aforesaid ingredients for dowry death remain unproved that the appellant cannot be said to have caused dowry death and unless the dowry death is proved, the presumption under Section 113-B of the Evidence Act is not applicable. Essential ingredients of dowry death should be proved by the prosecution and it is the burden on the prosecution to prove dowry death then only presumption under Section 113-B of the Evidence Act arises. The pre-requisites to raise presumption under Section 304(B) of the Indian Penal Code and 113-B of the Evidence Act having not been fulfilled the conviction of the appellant cannot be justified. Mere unnatural death of the deceased within seven years of marriage in her matrimonial home is not sufficient to convict the accused under Section 304(B) and 498A of the Indian Penal Code as has been held by the Hon’ble Supreme Court in the case of Charan Singh @ Charanjit Singh vs. State of Uttarakhand, 2023 SCC OnLine SC 454. 28. In the present case, from the evidence it appears that the deceased has died in her matrimonial home but the surroundings circumstances and the evidence of witnesses are not supporting it to be a case of dowry death. The deceased died at a village and her dead-body was disposed off by the accused persons including the appellant but because the dead-body was disposed of by the accused persons including the appellant, he cannot be convicted for commission of the offence of dowry death and therefore the conviction of the appellant under Section 498(A) and Section 304(B) of the Indian Penal Code cannot be sustained, and the same is set aside. 29. 29. Though the appellant is not convicted under Sections 498(A) and Section 304(B) but his conviction under Section 201 of the Indian Penal Code has been proved beyond reasonable doubt and, therefore, the conviction of the appellant under Section 201 of the Indian Penal Code and sentence to under rigorous imprisonment of one year and fine of Rs. 500/- is upheld. 30. The appeal stands allowed. 31. The records of the case be returned to the Trial Court forthwith. 32. Interlocutory application(s), if any, also stands disposed off.