IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.1033 of 2011 SANTOSH RAJBANSHI, SON OF RAM SUKHI RAJBANSHI, RESIDENT OF VILLAGE MAHUAR, P.S. HASPURA, DISTRICT - AURANGABAD (BIHAR) APPELLANT/S VERSUS THE STATE OF BIHAR RESPONDENT/S Appearance: For the Appellant/s : Mr. [ENTITY], Adv. Mr. [ENTITY], Adv. For the State : Mr. [ENTITY], APP CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV JUDGMENT
Date: 27-01-2014
1. Sole appellant [ENTITY] who has been convicted vide judgment dated 30.06.2011 for an offence punishable under [SECTION]/34 [ACT] 201/34 [ACT] and sentenced to undergo R.I. for 10 years as well as also slapped with fine appertaining to Rs.2000/ - in default thereof to undergo imprisonment of one year additionally, R.I. for 2 years under [SECTION] of the [ACT] vide order dated 02.07.2011 by the learned Additional Sessions Judge, IVth, Aurangabad in [CASE NUMBER] challenged the conviction and sentence.
2. [ENTITY] father of deceased [ENTITY] lodged First Information Report on 05.11.2008 at about 08:15 A.M. in presence of [ENTITY] and [ENTITY] alleging inter alia that his daughter [ENTITY] aged about 19 years was married with [ENTITY], son of [ENTITY] on 27 -04-2008. Marriage and Gauna was effected simultaneously and at the time of [ENTITY] sumptuous gift were donated according to his means. Five days after marriage , he had sent his nephew [ENTITY] with [ENTITY] as well as also for [ENTITY] of his daughter. But [ENTITY] of [ENTITY] had not obliged. After 15 days he himself had gone to [ENTITY] of [ENTITY] and met with his son -in-law, [ENTITY], his daughter and asked for [ENTITY] even then was refused. After two months, he again gone to [ENTITY] of his daughter and met with his daughter who had disclosed that [ENTITY] will not be effected as they were demanding the motorcycle. He again insisted for [ENTITY] but his [ENTITY] , [ENTITY] and son-in-law refused. On 17-10-2008 he had asked for presence of his daughter as well as son -in-law for opening of a bank account to deposit the cheque which he had received in lieu of [ENTITY]. After opening the bank account he handed over passbook to his son -in- law and requested them to come to his place over which his son-in-law disclosed that [ENTITY] will be effected only on the dictum of his parents. His daughter, at that very occasion had said that now her dead body will go. On 04- 11-2008 his another son-in-law received information over his mobile regarding commission of murder of [ENTITY] by her [ENTITY] as well as disappearance of her dea d body. He along with his another son -in-law rushed to the place and then coming to know about the same approached the police.
3. On the basis of the aforesaid information , [CASE NUMBER] was registered whereupon investigation commenced and concluding the same, charge sheet was submitted against all except [ENTITY] against whom investigation continued. Accordingly, five accused at an initial st age were put up on trial out of whom over death of [ENTITY] a report was called for, meanwhile co -accused [ENTITY] and [ENTITY] did not appear on account thereof, vide order dated 07 -05-2011 bail bonds were cancelled and trial was accordingly separated. However, the trial continued against [ENTITY] as well as [ENTITY] out of whom by the judgment and order impugned [ENTITY] was acquitted while appellant [ENTITY] has been convicted and sentenced for.
4. It has been submitted on behalf of appellant that the finding recorded by the learned trial court happens to be bad in law as well as on facts in the background of the fact that at an initial stage, as is evident from First Information Report , the informant had not disclosed that there was any demand of dowry, more particularly, motorcycle as well as Rs.50,000/ - from the accused side in lieu of dowry. Although, during course of trial the prosecution had developed the story which cannot be and should not be accepted because of the fact that it happens to be a material development in the prosecution version from the initial one. It has also been submitted that from the First Information Report itself, it is evident that there happens to be complete lacking of incidence pointing out torture and cruelty at the hands of appellant relating to procurement of dowry. That means to say when the prosecution itself failed to substantiate the demand of dowry as well as torture and cruelty then in that event the main ingredient of [SECTION] of the [ACT] is found lacking of, consequent thereupon the finding of trial court with regard to [SECTION] of the [ACT] is completely found demolished. To support the same also relied upon [PRECEDENT]. It has also been submitted that none of the PWs are resident of P.O. village and on account thereof , none of the PWs are an eye witness to occurrence. The prosecution had not explained the circumstances whereunder during course of investigation the Investigating Officer (PW-7) had failed to examine the persons of the P.O. village. That means to say the investigation has been conducted in partial, arbitrary manner and on account thereof happens to be perfunctory one apart from the fact that no independen t witness has been examined during course of trial .
5. While criticizing the evidence of the PWs, it has been submitted that because of the fact that all the witnesses are chance, interested planted witness on account thereof, there happens to be inconsistency amongst them on all material aspect. It has also been submitted that they are even inconsistent with regard to recovery of a dead body from river [ENTITY] where it was submerged and in likewise manner happens to be the conduct of the Investigating Offi cer. So submitted that the judgment of conviction and sentence recorded by the learned trial court did not justify its prevalence.
6. At the other hand, the learned Additional Public Prosecutor while supporting the judgment of conviction and sentence reco rded by the learned trial court submitted that it is fit to be confirmed because of the fact that (a) marriage is admitted, (b) On account of recovery of dead body death is also out of controversy (c) there is no development or embellishment in the evidence of the witnesses on the score of demand of Rs.50,000/ - as well as motorcycle, (d) though FIR is not accepted to disclose minute details but the fact of demand of motorcycle is there, (e) the death happens to be within seven years of marriage, (f) the death was abnormal by way of throttling, (g) before death demand was there (h) for fulfillment of that demand deceased met with torture and cruelty. So the finding recorded by the learned trial court happens to be inconsonance with the materials available on the record. Consequent thereupon, did not attract interference.
7. During course of conduction of trial , altogether seven PWs have been examined as well as the signature of informant over First Infor mation Report Ext.- 1, Signature of FIR attesting witnesses Ext. -1/1 Ext.1/2, Signature of over Inquest Report (C.C.) Ext. -2, Postmortem Report Ext.-3, Formal FIR Ext.-4, Inquest Report Ext-5 have been exhibited. Contrary to it , neither any DW nor any exhibit has been made on behalf of appellant.
8. The corpus delecti was recovered on 05.11.2008 itself for which inquest report Ext. -5 was prepared. After perusal of the same, it is evident that the Investigating Officer (PW-7) had found the blood coming out from the nose as well as there was abrasion near the neck. The body was sent to postmortem which was conducted by PW-5. Dead body was received at the morgue on 05.11.2008 at about 10:00 P.M. and the postmortem was conducted on 06 -11-2008 at 07:30 Am. On physical verification of dead body it was swollen and petrified with faint mark of ligature round the neck. On dissection clotted blood, larynx and trachea with fracture of hyoid bone was found. The injuries were ante -mortem in nature caused by strangulation and accordingly, cause of death was asphyxia. Time elapsed since death happens to be 4-5 days prior to conduction of postmortem. During cross-examination nothing substantial has been found save and except having failure on the part of the PW -5 to mention about rupture of subcutaneous tissue which, in case of strangulation must be found. It has also been stated that putrification on the whole body may be on account of having the dead body in water or having the dead body remaining on the earth for several da ys. It had further been disclosed by the doctor that age of death of deceased was estimated on the basis of putrification.
9. On account of recovery of dead body of deceased [ENTITY] as well as in the opinion of doctor the death being on account of asphyxia due to throttling is indicative of the fact that deceased was done to death in abnormal circumstance on account of bodily injury being ante-mortem in nature.
10. Now coming to the other aspect, it is evident from the First Information Report itself that the date of marriage happens to be 27-04-2008 on which date [ENTITY] was also performed. It is also apparent there from that they had received information with regard to murde r of deceased [ENTITY] on 04-11-2008 however having no certainty with regard to date of death but the same is found governed with the finding recorded by PW -5 the doctor. It is also evident from the First Information Report that no specific disclosure wi th regard to physical form of torture as well as cruelty has been disclosed save and except that the [ENTITY] of deceased was not allowing [ENTITY] as well as having a disclosure at the end of deceased that now her dead body will come from her [ENTITY]. Informant has been examined as PW -6. He in- examination-in-chief has stated that [ENTITY] , deceased, was his youngest daughter who was married with [ENTITY] on 27-04-2008. After marriage, his daughter had gone to her [ENTITY] but she did not return. Her [ENTITY] was saying that they will not allow her [ENTITY] till handing over of motorcycle by her father. He had gone to [ENTITY] of his daughter for the purpose of [ENTITY] but they did not allow. He had called his daughter at Punjab National Bank, Haspura on 27-10-2008. He had deposited the amount which he had received in name of his daughter under [ENTITY]. He had handed over passbook to his daughter. His daughter ha d requested to accompany her of his place but he said that he will not carry her against the wish of her [ENTITY]. His daughter had further disclosed that they will not allow [ENTITY] till they get motorcycle. His son -in-law had not allowed his daughter to go to his place rather had taken away. [ENTITY], [ENTITY] and [ENTITY] were demanding motorcycle. Subsequently thereof, he received information with regard to murder of his daughter by his co -villager over phone. Thereafter, he had gone to his [ENTITY] of his daughter and found her house locked. All the persons were absconding. Then he had gone to Police Station and informed. He again came back to the [ENTITY] of his daughter along with police personnel. They have also gone to [ENTITY] River and dead body of his daughter was recovered at its northern flank which was beneath soil. The Investigating Officer had again taken his statement, took the dead body to Police Station. Also exhibited the signature. During cross-examination at para-8 he had stated that his daughter died seven month after marriage. His daughter did not return to his place after marriage. In para -9 he had said that accused persons have got no landed property. They earned their livelihood doing menial work. He came to know from his daughter that accused persons have / are demanding motorcycle. None other than his daughter had spoken like so. In para-10 he had categorically stated that he came to know with regard to demand from his daughter on the day on which his daughter had come to Haspura (Punjab National Bank). At that very time none other was present. He had not disclosed the aforesaid event to anybody at his house. At para -12 he had stated that his daughter died after five days when he met with her at Haspura. His nephew [ENTITY] had informed with regard to murder of his daughter. How [ENTITY] got information regarding murder of his daughter he has got no knowledge. He had further denied that in the First Information Report he had mentioned the fact that information was conveyed by his son -in-law. In para-13 he had said that he got information at about 12:00 noon on 04.11.2008. In para-14 had stated that he had gone to Police Station after receiving information accompanied by his nephew. He had given fardbeyan. His nephew had not given any statement. His nephew had not signed over fardbeyan. He had made statement at about 07:00 P.M. [ENTITY] called him on the following morning and on 5.11.2008 he along with police had gone to [ENTITY] of his daughter at about 07:00 A.M. and reached there on police jeep at about 08:00 A.M. along with [ENTITY], [ENTITY], [ENTITY]. His [ENTITY] was not present at his house rather he was present at the Darwaja of [ENTITY]. His [ENTITY] was caught hold by the police and got him in police jeep. They have gone to river. Then, thereafter this witness was discharged on the subsequent occasion on account of cross-examination. Therefore, his evidence is found without any suggestion explanation at the end of the defence at least with regard to cause of the death.
11. PW-1 is [ENTITY], Phupha of deceased who had stated that [ENTITY] was married with [ENTITY] about a year ago. [ENTITY] had gone to her [ENTITY]. He along with brother of [ENTITY] and others had gone to Mahuaar ([ENTITY] of [ENTITY]) for [ENTITY] but the [ENTITY] of [ENTITY] did not o blige them and said that after getting of Hero Honda Motorcycle [ENTITY] will be effected otherwise not. Then thereafter they returned back. At about six months ago wife of [ENTITY] had disclosed that [ENTITY] has been murdered by her [ENTITY]. Her husband, mother-in- law, father-in-law had murdered [ENTITY] over which he along with [ENTITY] gone to Mahuaar. They have found the house of [ENTITY] closed and all the members of her [ENTITY] were missing. Then they returned back to Jalpura ([ENTITY] of [ENTITY]). Then, thereafter he along with [ENTITY], [ENTITY] have gone to Police Station where [ENTITY] had recorded his fardbeyan over which he had also put his signature. As directed by the police official , they have again gone to Police Station on the following mo rning whereupon the police official said that after collecting some more persons they should proceed towards [ENTITY] of [ENTITY] whereupon 40 -50 persons have gone to village-Mahuaar where they have caught hold father -in- law of [ENTITY] police had also arriv ed. On query, father-in- law of [ENTITY] had disclosed that they had burn t the dead body at the embankment of [ENTITY]. Then they have gone to [ENTITY] river and began to search the dead body during course thereof they have traced out from a bush. Inquest was prepared in his presence whereupon he had also signed. During cross-examination at para-3, it is evident that he had mentioned the fact that accused persons are landless and they earned their livelihood by doing menial. They have got tiled roof building. In para-14 he had further disclosed that at the time of negotiation of marriage, it was settled at cash appertaining to Rs.15,000/- along with a motorcycle. The [ENTITY] ceremony as well as marriage was effected in cordial atmosphere and thereafter the victim had gone to her [ENTITY]. [ENTITY] remained at her [ENTITY] for six months April to October. He had further disclosed that she stayed at her [ENTITY] up to 13-14 October. On 14 t h October while he was at Jalpura, he already came to know that the girl is not alive. On 13 t h October he got an information at his village that [ENTITY] had died over which he along with [ENTITY] had gone to [ENTITY] of deceased where he came to know with regard to murder of [ENTITY]. Then thereafter they returned back to their house and from the re he came to the place of deceased. As father of deceased was not there as such he had narrated the event to her mother. His house as well as [ENTITY] of [ENTITY] lies in same village. While he was at his Darwaja, the father of deceased came at 09:00 P.M. He had narrated the incidence over which he requested to accompany him to Police Station. They reached at Police Station at about 09:00 P.M. Police official had recorded the statement and took signature of [ENTITY], myself as well as [ENTITY]. Then thereafter the y returned back from the Police Station. On the following morning they have gone to Police Station. From police station [ENTITY] had gone to [ENTITY] of [ENTITY] along with father of [ENTITY] on police jeep while they have gone on bare foot. He had further disclosed that before their arrival at [ENTITY] of deceased , his co-villager have already caught hold one of the accused who was aged about 50 -60 years. He had seen the dead body. It was tied with at 3-4 places. When the cloth was taken out from her mouth, blood began to ooze out slowly from nostril as well as mouth. The dead body was of 1 -2 days. The dead body was taken out from shroud. The dead body was recovered at Banka Ghat. None of the villag ers of Mahuaar village came at that very place. One cot was lying east to the dead body. He had not seen whether dead body was taken on cot or not. He had not seen any article of deceased kept over cot. Dead body was brought to Police Station and from there it was sent for postmortem. The villagers had caught hold father-in-law of deceased and make query for 10-15 minutes. Then there happens to be denial to suggestion.
12. PW-2 had stated that [ENTITY] was daughter of [ENTITY] who was married a year ago at village- Mahuaar. Just after marriage she had gone to her [ENTITY]. Father of [ENTITY] and others have for [ENTITY] but her [ENTITY] did not permit as the son -in-law was demanding motorcycle. [ENTITY] was murdered by her husband, father-in-law, mother-in-law, [ENTITY] and one relative of the village after seven months of marriage for motorcycle. He along with 35 co -villagers have gone to village-Mahuaar and took father-in-law of [ENTITY] near Kaithi River as he had disclosed that dead body has been buried near Kaithi River. Aforesaid disclosure was made by father-in-law of [ENTITY] before Officer -in- charge. Because of the fact that a disclosure was made by the father-in-law of [ENTITY] before Officer -in-charge that dead body has been thrown in the river after having burnt. They have searched out the dead body from river having tied with soil. Thereafter, dead body was taken to police station. During cross -examination he had stated that his statement was recorded at the P.S. itself. Though in paragraph 3 the defence had tried to drew contradiction but the attempt is found frustrated as attention of the I.O. (PW-7) has not been drawn towards the same. In para-4 he had stated that informant happens to be his uncle. At the time of [ENTITY] he had gone to village of accused. At that very time there was no demand of motorcycle. The deceased did not return to place of her father on [ENTITY]. He had not gone to the place of accused during interven ing period. In para-5 of the cross-examination, he had further stated that [ENTITY] had disclosed him that accused persons are demanding motorcycle and for that are torturing her but he is not remembering the date, time, year. In para-6, he had denied the suggestion of the defence that as she was of week mental potential on account thereof, she on her own left the house. In para -7 he had disclosed that they were not informed by the accused persons. One person of the village of accused had informed [ENTITY] over which they have gone. He is not remembering his name nor ha d seen. In para-10, para- 11 there happens to be elaborate cross -examination over going to the [ENTITY] of deceased as well as with regard to recovery of dead body. In para-12, he had denied the suggestion. In para-13 he had specifically disclosed that there was abrasion as well as sign of throttling over neck of deceased.
13. PW-3 is [ENTITY] who had stated that deceased [ENTITY] was married with [ENTITY] at about one and half years ago. Then thereafter she had gone to her [ENTITY]. [ENTITY] had gone for [ENTITY] but [ENTITY], [ENTITY], mother -in-law of [ENTITY], brother-in-law of [ENTITY] had said that without motorcycle [ENTITY] will not be effected. After six month thereof, [ENTITY] was murdered by the accused persons for motorcycle and threw her dead body in the Kaithy river. Hearing the news of murder he along with 35-36 persons have gone to [ENTITY] of [ENTITY]. They have searched the dead body in the river and traced out the same. Soil was tied with the dead body. In para-2 his attention was drawn towards previous statement but the same is found worthless for want of non cross-examining the I.O. PW-7 on that very score. In para-3 he had disclosed that at the time of [ENTITY] there was no demand of dowry. Even at the time of marriage, there was no demand. In para-4, he had disclosed that after marriage [ENTITY] had gone to her [ENTITY] where she was murdered. In para-5 he had also disclosed with regard to demand of motorcycle which he came to know from [ENTITY] but he is unable to say the date, time and year. In para-6, he had also stated that he is unable to say how [ENTITY] was informed. In paras-7, 8, 9, 10, he had categorically stated the events whereunder dead body was traced out beneath water as well as having throttling mark over neck .
14. PW-4 is [ENTITY], cousin brother of deceased [ENTITY]. He had stated that [ENTITY] was married with [ENTITY] of village Mahuaar about one and half years ago. [ENTITY] died at her [ENTITY]. He along with [ENTITY] and others had g one to [ENTITY] to [ENTITY] and asked for [ENTITY] over which father of [ENTITY] had said that [ENTITY] will not be effected. [ENTITY] began to weep and disclosed that her [ENTITY] are demanding motorcycle. Then they returned back. One person resident of village-Madan Bigha whose daughter is married with his co-villager, [ENTITY] had disclosed that the girl whose marriage has been solemnized at Mahuaar has been murdered over which he had disclosed to mother of [ENTITY] . Then thereafter he along with [ENTITY] had gone to Mahuaar and seen house of [ENTITY] closed. On query the neighbours did not disclose. Thereafter they returned back. On the following morning when he along with 20 -25 persons have gone to Mahuaar, met with father of [ENTITY] who had disclosed that [ENTITY] died at the time of delivery. They have burn t the dead body. When they insisted to show the place, then he took them to Kaithighat at the bank of [ENTITY] where Officer-in-charge along with force came. The father of [ENTITY] had pinpointed a place and disclosed that at that very place the deceased was burnt but they have not found any sign and on account thereof , the Officer-in-charge had directed them to search out and during course thereof they found one cot in plough ed field. Some of the persons also gone inside water where from dead body of [ENTITY] was taken out which was tied with soil. The father of [ENTITY] had identified the dead body that of [ENTITY]. There was sign of throttling. The dead body was taken to P.S. During cross-examination at para-2 he had stated that first of all they have gone to P.S. at evening hour. On the following day they have gone to Mahuaar. In para -4 his attention has been drawn up but again as the same has not been confronted to PW-7, as such loosen its sanctity. In para-10 he had further disclosed. In para -11 said that he came to know from [ENTITY] with regard to demand of motorcycle in lieu of dowry. In para -12 he had further stated that twice he had gone to the place of [ENTITY] where [ENTITY] had divulge the fact wi th regard to demand of dowry. Then happens to be the suggestion which he had denied.
15. PW-7 is the I.O. he had stated that he took up investigation of Haspura P.S. Case No.190/2008. He had exhibited the relevant documents. In para -3 of his examination-in-chief, it is evident that he had incorporated place of occurrence, [ENTITY] house of deceased. Apart from giving topography thereof he had also disclosed that he had found the articles disorderly within room as well as out side room. Then had stated that on the basis of the statement of accused they came at the bank of river [ENTITY] and recover ed dead body of deceased there from. Accordingly, prepared inquest report in carbon process and sent the dead body for postmortem. Recorded the statement of the whiteness and after completing the investigation, submitted charge sheeted. During cross-examination he had stated that all the witnesses are of village-Jalpura. In para-10 he had stated that he had gone to place of occurrence along with informant where he found one old person named as [ENTITY] who was apprehended but he had not mention the same in the case diary. Thereafter, his statement was taken and then they have proceeded towards [ENTITY] River. He had further admitted that he had not examined the persons of boundary. He had further stated that none of the villagers of Mahuaar village had stated before him that they have seen the accused persons carrying the dead body. He had not mentioned the distance in between the place where dead body was recovered from village - Mahuaar. When he reached at the bank of river he found people were present since before.
16. From the lower court record, it is evident that defence had not examined any DW nor exhibited any document. It is also apparent from the lower court record that during course of statement recorded under [SECTION] of the [ACT] they had simply denied the occurrence as well as allegation.
17. From the evidence as available on the record, it is crystal clear that deceased was married with appellant [ENTITY], she died while staying at her [ENTITY], her death was on account of throttling, there was persistent demand of a motorcycle and for that the [ENTITY] was forbidden and the death happens to be within a year of marriage. Defence could not been able to sack the evidence of PWs on the above score .
18. None of the witnesses had divulged with regard to incidence of physical torture nor they have disclosed that they were ever complained by the deceased regarding physical forum of torture.
19. Learned counsel for the appellant during course of argument relying upon [PRECEDENT] submitted that there should be specific evidence on behalf of prosecution with regard to torture soon before death of the deceased. As held above, physical forum of torture has not been alleged by the prosecution witnesses rather they consistently spoken over conduct of appellant as well as his family members in not allowing [ENTITY] to facilitate fulfillment of demand of motorcycle in lieu of dowry. The decision cited on behalf of appellant did not distinguish form of torture. Now the simple question which has arise n at the present moment where there happens to be mental form of torture or not. In [PRECEDENT] the aforesaid issue was taken into consideration:
11. To appreciate the rival proponements advanced at the B ar, we think it apposite to refer to [SECTION], [ACT] which deals with dowry death. It reads as follows: -
304B. Dowry death. - (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 purposes of this sub-section, "dowry" shall have the same meaning as in [SECTION] of the [ACT].
(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.
12. To get the said provision attracted, certain ingredients are to be
satisfied. Scanning the said provision, this Court in [PRECEDENT] has stated thus:-
The essential components of [SECTION] are: (i) Death of a woman occurring otherwise than under normal circumstances, within 7 years of marriage. ( ii) Soon before her death she should have been subjected to cruelty and harassment in connection with any demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment, can be presumed to be guilty of offence under [SECTION] To be within the province of the first ingredient the provision stipulates that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances. It may appear that the former limb which is described by the words death caused by burns or bodily injury is a redundancy because such death would also fall within the wider province of death caused otherwise than under normal circumstances. The former limb was inserted for highlighting that by no means death caused by burns or bodily injury should be treated as falling outside the
26. ambit of the offence.
13. In this context, it is apposite to refer to [SECTION] of the [ACT].
The said provision is extracted below: -
113-A. Presumption as to abetment of suicide by a married woman. When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
14. [SECTION], which provides for presumption as to dowry death, was inserted with a view to fight against the plague of dowry death. The said provision is as follows: -
"113-B. Presumption as to dowry death. When the question is whether a person has committed the 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 the dowry death.
Explanation. For the purposes of this section, dowry death shall have the same meaning as in [SECTION] of [ACT].
15. Interpreting the aforesaid provisions in juxtaposition with [SECTION], [ACT] this Court, in [PRECEDENT], has expressed thus:-
"A conjoint reading of [SECTION] of the [ACT] and [SECTION] that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of death occurring otherwise than in normal circumstances. The expression soon before is very relevant where [SECTION] of the [ACT] and [SECTION] pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. The learned Judges, while proceeding further and interpreting the expression soon before, opined thus:-
The determination of the period which can come within the term soon before is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression soon before would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.
17. Presently we shall dwell upon the other limb of cruelty as engrafted under [SECTION] deals with husband or relative of husband of a woman subjecting her to cruelty. The said provision along with the explanation reads as follows:-
498A. Husband or relative of husband
of a woman subjecting her to cruelty.-
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.- For the purpose of this section, cruelty means -
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
or (b) harassment of the woman where
such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
18. Clause (a) of the Explanation to the aforesaid provision defines cruelty to mean any willful conduct which is of such a nature as is likely to drive the woman to commit suicide. Clause (b) of the explanation pertains to unlawful demand. Clause (a) can take in its ambit mental
30. cruelty. It has come out in evidence that there was ill-treatment by the mother-in-law and the husband. The bride was in her early twenties. She was turned out of matrimonial home on certain occasions. This aspect has been established beyond doubt. There can be no dispute that in a family life, there can be differences, quarrels, misgivings and apprehensions but it is the degree which raises it to the level of mental cruelty. A daughter-in-law is to be treated as a member of the family with warmth and affection and not as a stranger with despicable and ignoble indifference. She should not be treated as a housemaid. No impression should be given that she can be thrown out of her matrimonial home at any time. In the case at hand, considering the evidence of the prosecution witnesses, we are disposed to think that it is a case where the bride was totally insensitively treated and harassed. It is not that she has accidentally consumed the poison. She had deliberately put an end to h er life. The defence had tried to prove that she was suffering from depression and because of such depression, she extinguished the candle of her own life. The testimony of the doctors cited by the defence has not been accepted by the learned trial judge a s well as by the High Court. They have not been able to bring in adequate material on record that she was suffering from such depression as would force her to commit suicide. On a perusal of the evidence of the said witnesses we find that the finding recor ded on that score is absolutely impeccable. In view of the same, the evidence brought on record that she was treated with cruelty and harassed deserves to be given credence to and, accordingly, we do so.
20. The aforesaid issue was also considered by the Hon'ble Apex Court in [PRECEDENT].
"19. We have to examine the correctness or otherwise of the findings recorded by the trial Court, affirmed by the High Court, as to whether the alleged relationship between A-1 and A-2 has in any way constituted cruelty within the meaning of explanation to [SECTION] [ACT]. The facts in this case have clearly proved that the A-1 has not ill-treated the deceased, either physically or mentally demanding dowry and was living with A- 1, in the matrimonial home till the date, she committed suicide. Cruelty includes both physical and mental cruelty for the purpose of [SECTION] [ACT] reads as under :-
498A. Husband or relative of husband of a woman subjecting her to cruelty.
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.- For the purposes of this section," cruelty" means-
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
20. This Court in [PRECEDENT], examined the scope of the explanation and held as follows : -
3. The basic purport of the statutory provision is to avoid cruelty which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word cruelty as is expressed by the legislatures:
whereas Explanation (a) involves three specific situations viz. (i) to drive the woman to commit suicide or ( ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of cruelty in terms of [SECTION]
21. In [PRECEDENT], this Court held that the concept of cruelty under Section
498A [ACT] and its effect under [SECTION] [ACT] varies from individual to individual also depending upon the social and economic status to which such person belongs. This Court held that cruelty for the purpose of offence and the said Section need not be physical. Even mental torture or abnormal behavior may amount to cruelty or harassment in a given case.
22. We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to cruelty, but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to [SECTION] [ACT].
Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of [SECTION] [ACT]. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one's life. We, on facts, found that the alleged extra marital relationship was not of such a nature as to drive the wife to commit suicide or that A-1 had ever intended or acted in such a manner which under normal circumstances, would drive the wife to commit suicide.
21. That means to say the mental cruelty is found duly acknowledged and not allowing the deceased to go to her Maika by declining to eff ect [ENTITY] as sought for by the prosecution witnesses, till demand of motorcycle is fulfilled. It is apparent the aforesaid forum of activity at the part of appellant does attract the application of mental cruelty. As evident from the evidence of PW -6 the informant, it is apparent that he was not at all cross - examined on the aforesaid score. Not only this, the other PWs have also not been specially cross -examined. Non- examination of witness by the adversary possesses vital role during appreciation of evidence as has been held by [PRECEDENT].
17. This Court in [PRECEDENT] examined the effect of non -cross examination of witness on a particular fact/circumstance and held as under:
"31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his sta tement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in [SECTION] of the [ACT], which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by [SECTION] of the [ACT], which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses." (Emphasis supplied) [See also: [PRECEDENT]; and [PRECEDENT]].
18. Thus, it becomes crystal clear that the defence cannot rely on nor can the court base its finding on a particular fact or issue on which the witness has not made any statement in his examination -in-chief and the defence has not cross examined him on the said aspect of the matter.
22. Apart from this, as stated above from the consistent evidence of the prosecution witnesses, it is evident that deceased died on account of throttling at her [ENTITY]. After having the aforesaid event duly surfaced by consistent version of prosecution, then in that event in terms of [SECTION] of the [ACT], apart from [SECTION] casting an obligation upon the accused to explain the event, it was within their exclusive knowledge having the death of deceased while staying at her [ENTITY] in abnormal way, having throttled . The appellant had failed to discharge the obligation by explaining those circumstances rather during course of their statement recorded under [SECTION] of the [ACT] they blatantly refused. Such kind of response has been taken into consideration adverse to the defence version as has been held in case of [PRECEDENT].
"22. The appellant-accused denied all the questions put to him in his examination under [SECTION] [ACT] and did not furnish any explanation whatsoever to any question. He did not give any version about the incident, rather pleaded a false defence that [ENTITY], deceased, had developed illicit relationship with [ENTITY], a friend of her brother [ENTITY], (PW.2) and was pregnant before marriage. To question no. 32, as to whether he wanted to say anything, his reply was only `No'.
23. It is obligatory on the part of the accused while being examined under [SECTION] [ACT], to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropri ate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide:
[PRECEDENT]).
24. This Court in [PRECEDENT] held as under:
"Undoubtedly, the prosecution has to prove its case beyond reasonable doubt. However, in certain circumstances, the accused has to furnish some explanation to the incriminating circumstances, which has come in evidence, put to him. A false explanation may be counted as providing a missing link for completing a chain of circumstances".
(Emphasis added)
23. The aforesaid issue has also been taken into consideration in [PRECEDENT].
22. Another facet is required to be addressed to. Though all the incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under [SECTION] [ACT] except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances. ([PRECEDENT]). In the case at hand, though number of circumstances were put to the accused, yet he has made a bald denial and did not offer any explanation whatsoever. Thus, it is also a circumstance that goes against him.
24. Thus, after having analytical appreciation of the prosecution witnesses in consonance with the finding recorded by the learned trial court, it is evident that prosecution has succeeded in proving its case and on account thereof, the conviction and sentence so recorded by the learned trial court happens to be just, legal and proper. Consequent thereupon appeal is dismissed. Appellant is under custody hence directed to suffer remaining part of sentence.
([ENTITY], J.) PATNA HIGH COURT DATED, THE 27th day of Jan, 2014 [ENTITY] | | U | | T