IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.1099 of 2008 = = = Against the judgment of conviction dated 20.11.2007 and order of sentence dated 23.11.2007 passed by Additional Sessions Judge, F.T.C. III, Buxar in Sessions Trial No. 411 of 2004. **** Alok Kumar Pandey .... .... Appellant Versus The State of Bihar .... .... Respondent = = = For the Appellant: Mr. Arun Kumar Tripathi, Amicus Curiae For the Respondent: Mr. Ajay Mishra, A.P.P. *** P R E S E N T THE HON’BLE MR. JUSTICE MANDHATA SINGH - - - - - J U D G E M E N T Mandhata Singh,J., Prosecution case initiated on Fardbeyan of Kanhaiya Choubey, witness no.5 in brief is that his niece Sita Devi was married three years ago with this appellant with Hindu Rites and rituals. Gauna was solemnized one and half years ago. Sufficient gift was given at the occasion of marriage but after some days of Bidai, a demand started to be made followed by mental and physical cruelty. This much of the fact was told by the deceased to her parents and other family members when she came to her parents. Informant along with his brother went to village of the appellant and made some request but that was refused rather they remained constant on their demand, two months earlier to the incident Patna High Court CR. APP (SJ) No.1099 of 2008 dt.09-12-2011 2 Rs. 15,000/- was given when she (deceased) was again sent to her in-laws’ house on 25.8.2004. He (P.W.5) received information about killing of her niece by this appellant. Informant and others went to matrimonial home of the deceased where she was found dead on a Plung with injury of fire arm on her temporal region, blood was there on the bed. All the male members of the family were absent. Appellant’s mother Shanti Devi told them about killing by this appellant. 2. After concluding the trial, the case ended in conviction and sentence to the appellant for the offence under section 304B/34 IPC and section 27 of the Arms Act, by passing the impugned judgment and order validity of which has been questioned by filing this appeal. 3. In all 11 witnesses are examined in the case on behalf of prosecution and they are Ram Dayal Dubey P.W.1 a formal witness, Umashankar Chaubey P.W.2, Amit Kumar Chaubey P.W.3, Dil Kumar Chaubey P.W.4, Kanhaiya Chaubey P.W.5 informant, Dr. Anil Kumar Singh P.W.6, Shanti Devi P.W.7, Suman Devi P.W.8, Md. Nafis Ahmad P.W.9, I.O. of the case, Madan Chaubey P.W.10 and 11. Some documents are also exhibited in the case. Exhibit 1 is formal F.I.R., Exhibit 2 is signature of Patna High Court CR. APP (SJ) No.1099 of 2008 dt.09-12-2011 3 Kanhaiya Chaubey on Fardbeyan, Exhibit 3 is Post mortem report, Exhibit 4 is Inquest report, Exhibit 5 is Fardbeyan and Exhibit 5/1 is endorsement on Fardbeyan. 4. There is no eye witness of the case on the point of killing. Circumstance appeared and statement of witnesses if are sufficient to establish commitment of dowry death by this appellant is the only point to be considered if that is taken into consideration by the trial court also. Section 304B IPC defines dowry death: “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. (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.” 5. Once appeared that there is no eye witness of the case then witnesses and circumstances are to be considered if the case comes under ambit of section 113B of the Indian Evidence Act which is on the point of presumption as to dowry death that runs as follows: Patna High Court CR. APP (SJ) No.1099 of 2008 dt.09-12-2011 4 “113B. 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 has 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.” 6. Then the points emerged to prove are that death occurred due to bodily injury or occurred otherwise than under normal circumstances, cruelty or harassment was for demand of dowry soon before the death. Marriage is within seven years is an admitted fact further there is no dispute that death was due to firearm injury which is supported by all the material witnesses including P.W.7 mother of appellant and P.W.8 her Gotni. Post mortem has also been conducted in the case and the doctor has opined that death is due to firearm injury is not denied. 7. Dead body was found lying on bed and this appellant along with his wife (deceased) was in the room is statement of mother of this appellant (P.W.7) and her Gotni (P.W.8) also followed by their statement that all the family members were sleeping inside the house, they heard sound of firing, went in the room and found the deceased dead. There is no occasion to mention that this much of the circumstance is sufficient to Patna High Court CR. APP (SJ) No.1099 of 2008 dt.09-12-2011 5 conclude that firing was from inside the room and after firing disappearance of this appellant from the room also can be taken as additional circumstance to establish that firing was shot by this appellant. 8. In cases under section 304B IPC presumption plays a vital role about commitment of dowry death for which prosecution is obliged to establish that marriage was within seven years, appellant is husband of the deceased or his relation, there was cruelty or harassment for demand of dowry soon before the death. Marriage if is solemnized within seven years of death is averred in the F.I.R., corroborated by P.W.2 in his examination in chief, P.W.3 in paragraph-1 of examination in chief that has not been doubted even can be said an admitted fact. 9. Another ingredient is about cruelty or harassment for demand of dowry soon before the death. P.Ws 2 and 3 are on this point that Rs. 40,000/- was being demanded without mentioning as of harassment or cruelty or source of information about demand even but P.Ws.4 and 5 are there to corroborate this fact. P.W.4 is full brother of the deceased. On this point his statement is that he used to go to his sister and she was telling that Patna High Court CR. APP (SJ) No.1099 of 2008 dt.09-12-2011 6 her husband was demanding Rs. 40,000/- causing cruelty including assault, specific averment about causing of cruelty is followed by the statement that he (P.W.4) along with his father and uncle requested for not making demand. 10. P.W.5 is informant of the case and uncle of the deceased. His statement is that his deceased niece was telling about making of demand of Rs. 40,000/-, causing cruelty and mental and physical harassment. Statements of all these witnesses are discussed by the trial court including their cross examination if can doubt their truthfulness but are found in-tact. Thus, it is observed that the ingredients obliged to be proved for presumption under section 113B of the Evidence Act by the prosecution is fully proved (established), so there is no infirmity in conclusion reached by the trial court. 11. Learned counsel for the appellant (amicus curiae) stressed that taking into consideration the age of the accused-appellant being 29 years and his facing trial since 2004, a liberal view may be taken on the point of sentence to the period under gone as the appellant remained in custody for a period of more than four years but in the case, mother and aunt of the appellant even Patna High Court CR. APP (SJ) No.1099 of 2008 dt.09-12-2011 7 have not come to defend the appellant. Firing is shot in the dead night while all the family members of the deceased and appellant were inside the house in their rooms. So, in my view appellant does not deserve for any sympathy on the point of sentence also. Judgment and order of conviction and sentence passed by the trial court in Sessions Trial No. 411 of 2004 is affirmed. This appeal is accordingly, dismissed being devoid of merit. 12. Let a copy of 1st page and last page of the judgment be handed over to learned counsel appearing for the appellant as amicus curiae for needful. ( Mandhata Singh, J.) PATNA HIGH COURT Dated: 09-12-2012 AI/ AFR