Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.337 of [SECTION]5 Arising Out of PS.Case No. -36 Year- [SECTION]2 Thana -CHAKAMHESI District- SAMASTIPUR [ENTITY], son of [ENTITY] Pandit, resident of Village - Kabujar, P.S. Chak Mehsi, District - Samastipur. Appellant/s Versus The [ENTITY] Respondent/s Appearance : For the Appellant/s : Mr. [ENTITY]-Advocate Mr. [ENTITY]-Advocate For the Respondent/s : Mr. [ENTITY]-A.P.P. CORAM: HONOURABLE MR. JUSTICE [ENTITY] Date: 07-08-[SECTION]7 Appellant [ENTITY] has been found guilty for an offence punishable under [SECTION], [SECTION], [SECTION] of the [ACT] and consolidately sentenced to undergo rigorous imprisonment for 10 years vide judgment of conviction dated 31.03.[SECTION]5 and order of sentence dated 07.04.[SECTION]5 passed by the Additional Sessions Judge- 5th, Samastipur in Sessions Trial No.196 of [SECTION]3. 2. On 21.04.[SECTION]2 at about 12.00 noon, informant, [ENTITY] (PW-3), who happens to be father of deceased [ENTITY] gave his fard-bayan alleging inter alia that his daughter [ENTITY] was married with [ENTITY] about one and half years ago. At the time of marriage, he had gifted according to his means, but few days after the marriage, [ENTITY] of [ENTITY] advanced Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 2 demand of motorcycle, which on account of financial constrain, he failed to fulfil as a result of which, his daughter was put on torture consistently. Today, he has been informed that her [ENTITY] has caused dowry death by way of putting her on fire and they also unsuccessfully tried to conceal the dead body to screen themselves, whereupon he came to Sadar Hospital and found the dead body in burnt condition. Accordingly, he alleged that in between 20/21.04.[SECTION]2
, his son-in-law, father-in-law, mother-in-law, brother-
in-law ([ENTITY]) and sister-in-law ([ENTITY] of his daughter) committed dowry death.
3. [ENTITY] was registered under [SECTION], [SECTION], [SECTION] of the [ACT], whereupon investigation was taken up and after completing the same, chargesheet was submitted on the basis of which, cognizance was taken paving way for trial before the Court of Sessions which culiminated with the result, the subject matter of instant appeal.
4. Defence case as is evident from mode of cross-
examination as well as statement recorded under [SECTION] of the [ACT] is that of complete denial of occurrence. It has specifically been pleaded that during course of cooking, deceased met with accidental fire. However, neither any DW nor a chit of paper has been produced in defence.
5. In order to substantiate its case, prosecution had Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 3 examined altogether seven PWs, who are PW-1 [ENTITY], brother of deceased, PW-2 [ENTITY], PW-3 [ENTITY], father of deceased, PW-4 Dr. [ENTITY], PW-5 [ENTITY], the I.O., PW-6 [ENTITY] and PW-7 [ENTITY]. Side by side, had also exhibited the document as Exhibit-1 signature of PW-1 over fard-bayan, Exhibit-2 Post Mortem Report, Exhibit-2/1 signature of Dr. [ENTITY] over the post mortem, Exhibit-3 fard-bayan, Exhibit-3/1 endorsement over fard-bayan, Exhibit-4 formal F.I.R. As stated above, nothing has been brought up on record on behalf of appellant in his defence.
6. PW-4 is the doctor, who had conducted post mortem over the dead body of [ENTITY] and found the following:-
i) Whole body was deeply burnt, body was charred due to it however, upper part of the body was more burnt as compare to lower part, burn was more deep at the posterior of the waist. Less burn was found at back, both the sole was also found burnt.
On dissection of trachea and lungs black particles and froth was found in the lungs and trachea and also contained black carbon particles. Cause of death of victim on account of severe burn injuries, time elapsed since death within 24 hours.
7. PW-5 is the Investigating Officer. He had deposed that in the year [SECTION]2, he was posted at Chakmeshi P. S. as S.I. Shakar Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 4 [ENTITY] was the Officer-in-Charge, in his absence, he used to perform the duty of Officer-in-Charge. On 21.04.[SECTION]2, he was incharge O/c and in that capacity had recorded fard-bayan of [ENTITY] at Sadar Hospital, Samastipur. On the basis of which, case was registered and investigation was taken up by him. It has also been stated by him that on 21.04.[SECTION]2, in the morning hour, he got confidential information that a body is lying in burnt condition in an orchard at village-[ENTITY] and some people are taking steps in getting the dead body disposed of. On account thereof, he along with other police personnel gone to village-[ENTITY] and found dead body in burnt condition lying in an orchard. On query, he came to know the same to be wife of [ENTITY]. None was present. He prepared inquest and sent the dead body for post mortem. He also gone to the place of deceased, but none was present there. Then, he reached at the Sadar Hospital, where he found person caring the dead body, father of deceased, whereupon his fard-bayan was recorded. After registration of the case, he took up investigation and during course thereof, had visited the place of occurrence which happens to be thatched house of [ENTITY]. He properly identified the same with a specific boundary. Nothing incriminating was found inside the house. The second P.O. happens to be Mango Orchard of [ENTITY] where dead body of deceased in burnt condition was lying. He also properly identified the same with specific boundary. He also Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 5 examined so many witnesses namely [ENTITY], [ENTITY], others were not ready to cooperate. He had also recorded statement of family members of [ENTITY] of deceased. Received the supervision note, post mortem report and then, had submitted chargesheet (exhibited the relevant documents). During cross- examination at Para-10, the defence had cross-examined with regard to typography of second P.O. Mango Orchard where dead body was lying. In Para-11, he had stated that house of accused happens to be thatched house. He had not recorded statement of the persons living in boundary as they were not ready to give statement. He had only recorded statement of [ENTITY], who came forward. From Para-14 to 26, it is evident that statement of those witnesses, who were not examined till then, was recorded by the learned lower Court. Though, it should not have been as the previous statement in terms of [SECTION] of the [ACT] is subject to corroboration or contradiction in terms of [SECTION] of the [ACT] having an exception relating to dying declaration. Furthermore, contradiction relating to evidences of PW-1, PW-2 and PW-3 have also been drawn up and relevancy thereof, will be considered at an appropriate stage. In Para-24, he had further stated that he had not recorded statement of that particular [ENTITY], who was directed to inform the [ENTITY] of the deceased.
8. PW-6 and PW-7 are the witnesses of village-[ENTITY] Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 6 that means to say, of appellants. PW-6 during cross-examination of his deposition stated that while he was going to harvest wheat crop, he heard uproar whereupon he had gone to the place which happens to be an orchard where he saw the dead body of a woman. Police arrived. He had not identified the dead body. Later on, he came to know that it was dead body of wife of [ENTITY]. Inquest was prepared by the police whereupon he had put his signature. He had not given any kind of statement before the police whereupon he was declared hostile and on account thereof, he was confronted with his previous statement. During cross-examination, he had stated that [ENTITY] and [ENTITY] is co-villager are known to him. He had further stated that they have got thatched house. He had not heard any kind of demand having at the end of [ENTITY] and [ENTITY]. The place where dead body was recovered happens to be half kilometer away from the house of the accused.
9. PW-7 is another inquest witness, who had stated that dead body of [ENTITY], wife of [ENTITY] was found in an orchard of [ENTITY] and for that, police had prepared inquest report over which he had put his signature. Dead body was in burnt condition. During cross-examination that during course of inquest more than 100 persons were present. Deceased was wife of his co-villager [ENTITY]. [ENTITY] and [ENTITY] never demanded dowry to the best of his knowledge.
Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 7
10. From the aforesaid evidences, it has become crystal clear that deceased died of ante-mortem burn injury within one and half years of her marriage and her dead body was found half kilometer away from the house of appellant [ENTITY]. It is also evident that although house of [ENTITY] even being thatched house had not been found anyway affected from the flame nor any kind of connecting evidence was found that means to say, presence of stove, articles spread around to suggest that deceased had caught fire while she was cooking. Apart from this, how the dead body was found in an orchard covering such long distance is also found unexplained.
11. Whenever prosecution for dowry death is being carried out, the prosecution as well as the defence are simultaneously entrusted to discharge their onus and for that, first of all, the prosecution has to place by positive evidence:-
a) death of deceased was within seven years of marriage otherwise than normal circumstance.
b) there was demand of dowry.
c) soon before her death, the demand persisted followed with torture or cruelty.
d) The aforesaid torture and cruelty should have been at the end of the husband or relative of the husband.
Once the aforesaid ingredients are found satisfied, then in that event, presumption though rebuttal in terms of [SECTION] of the [ACT] would be taken up by the Court till the onus having Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 8 upon the accused is properly discharged. If the accused succeeds, then in that circumstance, the case of the prosecution will be disbelieved and if not then, the accused will be bound to suffer.
12. It has settled at rest by several judicial pronouncements that no straight jacket formula could be laid down to identify as well as fix the period relating to soon before her death. The aforesaid time is to be considered as flexible one and depends upon facts of the case. So, it varies case to case.
13. Now, coming to the present case, it is evident that death had occurred within seven years of marriage and in otherwise than in normal circumstance. Thereafter, the evidences of the remaining witnesses are to be seen to perceive whether the other three ingredients requiring to be of dowry death have been satisfied by the prosecution or not.
14. PW-1 is the brother of the deceased. He had deposed that [ENTITY] was his sister, who was married with [ENTITY]. [ENTITY] happens to be his father, who had instituted this case. Marriage was solemnized on 10.07.[SECTION]0. At the time of occurrence, his sister was at her sasural. He had further stated that just after 2-3 months after the marriage, [ENTITY] began to demand a motorcycle and for that, his sister had informed. He, during his visit to the sasural of his sister, had talk with him and shown his inability to fulfil on account of financial crunch, but his brother-in-law did not Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 9 pay heed to it. His brother-in-law began to torture his sister by assaulting her, abusing her and sometime, she was not at all provided food. On 20.04.[SECTION]2, they were informed that his sister was murdered. The aforesaid information was given by the [ENTITY] of Chakmehshi P. S. whereupon they rushed to Sadar Hospital where they seen the dead body of his sister. Dead body was badly burnt. Police was there, before whom his father had given his fard-bayan over which, he put his signature. Post mortem was conducted and thereafter, dead body was handed over to them. They have conducted funeral as well as [ENTITY]. During cross-examination, he had stated that he had an occasion to visit [ENTITY]. He had visited in the month of August, [SECTION]0, then in the month of December, [SECTION]0. He met with his sister. He also met with some of the villagers, but he is not remembering their names. He had further stated that father of his brother-in-law was engaged in flour mill in the village itself while his brother-in-law used to go Punjab. In Para-6, he had further stated that they also got telephonically information over mobile. They had not gone to village-[ENTITY] as [ENTITY] arrived till then, who disclosed that dead body had been taken to Sadar Hospital. At the hospital itself, they came to know that his brother-in-law fled away from the village. His statement was recorded by the police. His brother-in-law was not present at his house. From the villagers, he came to know that after the occurrence, he fled away. After the occurrence, he had not gone to Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 10 [ENTITY]. His sister used to visit his place. In Para-16, he had stated that his sister had disclosed that his brother-in-law had directed her not to remain there till procurement of motorcycle. In Para-19, he had said that cooking at the place of his brother-in-law was done on woodstove, which was in Aryan. During raining season, it was at the verandah. In Para-24, he deposed that his sister used to cook the food. In Para-26, he had further stated that no such type of occurrence had previously taken place. He had denied the suggestion that his sister had sustained burnt injury on account of accidental fire during course of cooking.
15. So, from his evidence, it is apparent that the reason best known to the appellant, he was not cross-examined on the factum of demand of dowry i.e. relating to motorcycle as well as torture meted out to her which, this PW had categorically stated during his examination-in-chief.
16. PW-2 is grand father of deceased. In examination-in- chief, he had reiterated the allegation regarding demand of motorcycle by the appellant soon after marriage and then, on a torture meted out to her when they have shown inability to fulfil the same on account of financial constrain. During cross-examination at Para-5, he had stated that he had not talk with his villager regarding the torture having inflicted upon the deceased by the appellant. In Para-17, he had further stated that he had not informed any police officials at an earlier Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 11 occasion regarding torture having been meted out to the deceased at the end of the accused persons. At Para-21, there happens to be contradiction.
17. PW-3 is the informant. During course of his examination-in-chief, he had reiterated his earlier version. During course thereof, he had further deposed that his daughter used to say that [ENTITY] was demanding motorcycle and as, he shown his inability to fulfil the same. [ENTITY] began to torture his daughter, physically by abusing, assaulting and sometimes by way of non-providing the food. She had come six months prior to the occurrence at his village. Then thereafter, he had deposed with regard to other event. During cross-examination at Para-9, he had stated that he had informed her father-in-law as well as [ENTITY] with regard to torture being exhorted over [ENTITY] by her husband and for that, no Panchayati was convened nor any kind of complaints was made before the police official. He had further stated that he had seen the thatched house of accused since before the marriage. He after being satisfied then, proved the marriage. In Para-25, he had further stated that [ENTITY] had come to inform them whereupon they have gone to Sadar Hospital, seen the dead body, they had not gone to the Sasural of his daughter. He had denied the suggestion that [ENTITY] was at Punjab at the relevant time. He had also denied the suggestion that during course of cooking, his daughter had caught fire Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 12 whereupon she died.
18. From the evidence of PW-2 as well PW-3, it is evident that they were not at all directly confronted with the demand of dowry as well as theme of torture and cruelty meted out to her soon before her death. That being so, those evidences remained unshaken.
19. It is settled principle of law that the facts as deposed by the witnesses it not being challenged by way of cross-examination, then in that event, the same would be declared to be admitted one. In Gian Chand and others vs. State of Haryana reported in [SECTION]3(4) P.L.J.R. 7 (SC), it has been held:-
"11. The effect of not cross-examining a witness on a particular fact/circumstance has been dealt with and explained by this Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwanthuva (Dead) Thr. L.Rs. & Ors., AIR [SECTION]3 SC 1204 observing 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 statement 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 Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 13 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]; Ghasita Sahu v. State of Madhya Pradesh, AIR 2008 SC 1425; and Rohtash Kumar v. State of Haryana, JT [SECTION]3 (8) SC Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 14
12. The defence did not put any question to the Investigating Officer in his cross-examination in respect of missing chits from the bags containing the case property/contraband articles. Thus, no grievance could be raised by the appellants in this regard."
20. Now, coming to the evidence of I.O., as discussed above, the learned lower Court had incorporated the statement of the witnesses that means to say, PW-1, PW-2 and PW-3, what they have stated during course of their statement under [SECTION] of the [ACT] which, as is evident neither PW-1 was confronted nor PW-3 was confronted. So far PW-2 is concerned, he has been confronted with his earlier statement under Para-21 in following way:-"It is not a fact that during course of statement before the police, he had not stated with regard to demand of motorcycle and for that, deceased was assaulted frequently." But during course of examination of PW- 4, attention has been drawn up under Para-20, 21, 25 and in likewise manner, relating to informant at Para-16, Para-17 as well as Para-26. Similar is the situation relating to PW-1 at Para-23 and PW-24.
21. The learned counsel for the appellant has submitted that the observer which had also participated during course of post mortem, another doctor, who was also jointly involved have not been Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 15 examined and on account thereof, post mortem report would not be admitted. It has also been submitted that F.I.R. was drawn up on 21.04.[SECTION]2 at 5.00 p.m., but the same reached at the office of the Chief Judicial Magistrate beyond 24 hours and so, F.I.R. happens to be ante-timed and should not be relied on. Learned counsel for the appellant also referred Baijnath and others vs. State of Madhya Pradesh reported in [SECTION]7(1) P.L.J.R. 269 (SC) and submitted that in view of the aforesaid decision, the torture having meted out to the deceased soon before her death is not at all properly substantiated and so, this appeal should be allowed.
22. The learned Additional Public Prosecutor opposed the prayer and submitted that when defence themselves are at fault on account of non-challenging the evidence of the witnesses having deposed at their end over demand of dowry in lieu of motorcycle and for that, persistent demand was going on, which could not be fulfilled at the end of the prosecution party on account of financial crunch, the mode of treatment changed whereunder deceased was tortured and cruelty which ultimately cost her life. Apart from this, it has also been submitted that from the evidence available on the record, it is apparent that prosecution had succeeded in proving all the ingredients, whereupon presumption in terms of [SECTION] of the [ACT] was available and so, the appellant could have properly discharged the onus by explaining the circumstances, a) how the thatched house of Patna High Court CR. APP (SJ) No.337 of [SECTION]5 dt.07-08-[SECTION]7 16 appellant could not got under flame, b) how the dead body of deceased in burnt condition was found in an orchard c) no demand was ever made d) no torture was exulted over deceased e) deceased died of an accidental fire during cooking coupled with the fact that the evidence so adduced on behalf of prosecution remained unshaken onn that very score, due to the reason best known to the defence itself whereunder they have not been cross-examined.
23. After hearing rival submission as well as giving anxious look to the evidence available on the record, as discussed hereinabove, it is evident that prosecution has succeeded in proving its case and in likewise manner, the defence had failed to discharge the onus having in terms of [SECTION] of the [ACT]. Consequent thereupon, instant appeal lacks merit and is accordingly, dismissed. Appellant is under custody which he shall remain till saturation of the period of sentence.
([ENTITY], J) Vikash/-
AFR/NAFR A.F.R. CAV DATE N.A. Uploading Date 16.08.[SECTION]7 Transmission 16.08.[SECTION]7 Date