CRIMINAL APPEAL No.67 OF 1993 Against the judgment and order dated 12.2.1993 and 16.2.1003 passed by Sri Sarju Prasad, 3rd Addl. Sessions Judge, Aurangabad in S.Tr.No. 11 of 1991/ 19 of 1991. URMILA DEVI------------------------------------------Appellant Versus STATE OF BIHAR---------------------------------------Respondent For the appellant : Mr. Ranbir Singh, Amicus Curiae For the respondent: A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. REKHA KUMARI Rekha Kumari,J., This appeal is directed against the judgment dated 12.2.1993 passed by the 3rd Addl. Sessions Judge, Aurangabad in S.Tr.No. 11 of 1991/ 19 of 1991 whereby he has convicted the appellant Urmila Devi under sections 498A and 304B of the Indian Penal Code and sentenced her to undergo R.I. for seven years for the offence under section 304B I.P.C. and R.I. for two years for the offence under section 498A I.P.C. and has directed that the sentences would run concurrently. 2. There were three accused in this case, namely, 1. Shrikant Pathak, 2. Shanti Devi, Wife of Shrikant Pathak and 3. Urmila Devi (appellant), D/o Shrikant Pathak. All were convicted and sentenced as aforesaid. 3. The prosecution case as disclosed from the written report dated 9.9.1990 of Surajnath Pathak (informant) of Irgutala, Ranchi is that his daughter Kusum Devi was married to Gayandutta Pathak, S/o Shrikant Pathak of village Basaura, District Aurangabad in 1987. At the time of marriage he had given dowry according to his means, but after Gauna, Vinayakdutta Pathak, the elder brother of his son-in-law, claiming himself to be the karta of the family, started demanding cycle etc. and torturing his daughter for that. Accused Srikant Pathak also at his instance harassed his daughter. On 3.9.1990 at 9 A.M. his son-in-law came to his residence at Ranchi and gave him a letter of his daughter and complained that his father had discontinued to make provisions of food for him and his wife. On this the 2 informant gave 20 Kgs. of flour and Rs.500/- and on 4.9.1990 sent him to his house with the assurance that he would also soon visit his house. It is further said that on 8.9.1990 the informant started for Basaura and when he reached Aurangabad and was to proceed towards Basaura, he heard some persons talking that accused Shrikant Pathak with the help of his wife and daughter Urmila Devi had seriously burnt his daughter-in-law on 3.9.1990 and kept her in the house for two days and then murdered her by throttling and thereafter police reached there. On hearing their talk, he went to meet his relative, who lives at Aurangabad and in the next morning i.e. on 9.9.1990 alongwith his relative reached village Basaura at 8 A.M. and there he saw his son-in- law, who had lit funeral pyre, started weeping. The informant then went to the police station and filed the written report (Ext.4). 4. It appears that, in the meantime on 5.9.1990, on the information of the Chaukidar that the daughter-in-law of Shrikant Pathak had died of burn injuries and the dead body was lying in the house, the Officer In-charge of Mali P.S. went to the house of Shrikant Pathak and on a written report of Shrikant Pathak U.D.Case No. 2/1990 (Ext.8) was drawn up. The police sent the dead body for postmortem. During the course of investigation of U.D.case, the informant filed his written report and hence, on the basis of that report, this case was registered. The police after investigation submitted charge sheet against the abovenamed three accused persons including the appellant. 5. The appellant and the co-accused were charged under section 302 I.P.C. and in alternative for the offence under sections 304B and 498A I.P.C. and also for offence under sections 3 & 4 of the Dowry Prohibition Act. They pleaded not guilty to the charges. Their defence is that the deceased was burnt on account of accidental fire during cooking and that they never demanded any dowry or tortured the deceased and have been falsely implicated in this case. 3 6. The prosecution examined in all 13 witnesses including son-in-law (P.W.8) who had also been examined under section 164 Cr.P.C.. The defence also examined three witnesses. 7. The learned trial court after considering the evidence on record acquitted the appellant and other co-accused of the charge under section 302 I.P.C. and ¾ of the Dowry Prohibition Act and convicted them under sections 304B, 498A I.P.C. and sentenced them as mentioned above. 8. Learned Amicus Curiae submitted that the evidence on record is not sufficient to prove that the deceased was tortured for dowry and therefore, no offence under sections 304B, 498A I.P.C. is established against the appellant. 9. At the out set it may be pointed out that in order to establish the charge under section 304B I.P.C., the prosecution is obliged to prove that (i) the death of a woman was caused by burn or badly injury or had occurred otherwise than under normal circumstances, (ii) such death was occurred within seven years of marriage, (iii) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband either for or in connection with demand of dowry, (iv) the deceased was subjected to such cruelty or harassment soon before her death. If all the above circumstances are established then a presumption should be drawn under section 113B of the Evidence Act that such death is a dowry death. 10. In this case the evidence of Dr. Hanuman Ram (P.W.10) is that on 6.9.1990 at 7 A.M. he had performed the postmortem examination on the dead body of Smt. Kusum Devi (deceased of this case). According to his evidence, he had found burn injuries on front of chest, back of chest, both arms, face, front of scalp, back of abdomen and both the legs and according to him, the extent of burn injuries was 90% and the injuries were sufficient in ordinary course to cause death. He has opined that the cause of death was shock due to extensive burn and time elapsed since death about 24 hours of his examination. Therefore, from the 4 evidence of the doctor it is proved that Kusum Devi died of burning. 11. The evidence of P.W.9 (informant) is that his daughter Kusum Devi was married to Gayandutta Pathak on 12.6.1987. P.W.9 (son-in-law) in his deposition has also stated that he was married to Kusum about four years ago and that the death had occurred 8-9 months ago. He had deposed in court on 5.8.1991. P.W.6 Sheopujan Pathak, the brother of the deceased, has stated that his sister was married to Gayandutta Pathak in 1987. The evidence of the doctor as already mentioned also shows that the deceased died on or about 5.9.1990. 12. It is, therefore, also established that the deceased Kusum Devi died within seven years of her marriage. 13. As regards the other circumstances, the evidence of P.W.6 (Sheopujan Pathak), the brother of the deceased, P.W.7 Gopal Mishra, the maternal uncle of the deceased, P.W.9 Surajnath Pathak (informant) only is relevant. P.W.8 Gayandutta Pathak in his statement under section 164 Cr.P.C., of course, had stated that his father and sister were not providing him and his wife food but in his evidence in court he has not supported the allegation. So, his evidence is not important to prove the other circumstances. 14. P.W.9 has stated that Gauna of his daughter was performed in 1988 and after Gauna the elder brother of his son- in-law started demanding motorcycle and parents-in-law of his daughter started torturing her for this and he came to know of this from his daughter when she visited his place. He has further stated that his daughter also used to inform him about torture through letter. He has filed a letter (Ext.1) dated 13.6.1988 written by her in this connection. His evidence then is that once he had visited the sasural of his daughter, then his daughter had complained that her parents-in-law kept her box concealed and did not allow her to wear her clothes. He has also stated that in- 5 laws were not providing her clothes and so he used to send clothes to her but they used to conceal even those clothes. 15. The evidence of the witness further is that on 3.9.1990 his son-in-law came to him and handed over a letter (Ext.1/1) written by his daughter and told him that his parents have stopped providing food to him and his wife and hence, he (witness) gave him 20 Kgs. of flour and Rs.500/- in cash to him and sent him to Ranchi on 4.9.1990. His evidence also is that on 8.9.1990 he was going to meet his daughter and at Aurangabad bus stand he heard about the murder of his daughter. 16. P.W.6 has stated that after Gauna when his sister went to her sasural, the in-laws started demanding a cycle and Rs.500/- for purchase of a buffalo at the instance of Vinayakdutta Pathak. He has named the appellant also, as a person who had made the demand. His evidence then is that accused Shrikant Pathak had got his daughter married in 1988 and at that time the ornaments, clothes, utensils of his sister were forcibly taken and given by Shrikant Pathak in the marriage of his daughter as dowry. He has then stated that on 22.8.1990 on the eve of Teej vestival he had gone to sasural of his sister and at that time his sister had reported that her in-laws had kept her box containing clothes in the fodder room where grains are also kept and after search she had taken out the box and on this, her parents-in-law taunted that when she had started going to the room in which the grains were kept, she would also stealthily sell the grains and saying this that they and the appellant assaulted her. Her evidence then is that the mother-in-law of his sister also told him to caution her as she had started opening her mouth and further told that father-in-law who was angry with her had gone to Buxar and no one knows what he would do after he returned home. On this he (P.W.6) consoled his sister and then returned to his house. This witnerss has also stated that on 3.9.1990 his brother-in-law came to their residence and informed that after he (witness) returned from his house, from that date 6 his and his sisters food have been stopped. He handed over a letter written by his sister. His evidence also is that 20 Kgs. of food and Rs.500/- in cash were given to his brother-in-law and thereafter he learnt from his father that his sister was done to death by burning and throttling by the accused persons including the appellant. 17. P.W.7 has stated that the accused Vinayakdutta Pathak used to demand motorcycle as karta of the family and for non- fulfilment of the demand at the instance of Vinayakdutta Pathak, the parents-in-law and Urmila Devi (appellant) used to torture the deceased. 18. Thus, according to the above witnesses, after Gauna ceremony, there was demand of motorcycle and for non-fulfilment of demand there was torture to the deceased. But there is absolutely no evidence that there was any torture for dowry by the appellant or any of the accused soon before the death of the deceased. The letters (Ext. 1 and 1/1) written by the deceased also do not show that there was any torture for non-fulfilment of demand of dowry. In fact in the letters there is no mention of any dowry. The evidence of P.W.6 coupled with the evidence of P.W.9 also shows that in the marriage of his daughter in 1988 accused Shrikant Pathak had taken away, against the wishes of the deceased, her ornaments, clothes etc. Their evidence also is that the box containing clothes of the deceased was also kept concealed and as the deceased had searched it out, the accused persons were annoyed and the evidence of P.W.6 further shows that on 22.8.1990 he had gone to the house of the accused persons and at that time mother-in-law had complained about the conduct of the deceased to him and asked him to tell his sister to mend her ways. The above letters also corroborate these facts. The letter dated 13.6.1988 also shows that as the husband of the deceased was not earning, she was being neglected. The letter (Ext.1/1) which was taken by the husband of the deceased on 3.9.1990 to the informant shows that as the deceased had taken out the box for 7 wearing blause, the in-laws were annoyed, and from the time his brother left her sasural, she and her husband were not being provided with food. In this letter it is also mentioned that as the victim had gone to the room where grains were kept her parents-in-law taunted that she might sell the grains stealthily and so they wanted to burn her and when she became ready to go to the police station, she was prevented from going there. 19. Therefore, from the oral evidence of P.Ws. 6, 9 and the above documents it appears that soon before the death of the deceased, the deceased was tortured as the in-laws wanted clothes from her but they were not obliged, and as they kept the box of the deceased concealed and the deceased searched it out. The above oral and documentary evidence do not at all show that for non-fulfilment of any demand of dowry there was any torture soon before the death. As the death occurred soon after the husband of the deceased left for Ranchi, an interference on the basis of the above evidence can, of course, be drawn that the death was caused on account of incident regarding taking out the box from the room where box was kept concealed, but there is no nexus between the demand of dowry and the death of the deceased. As already mentioned, to prove the offence of dowry death and for the presumption under section 113B of the Evidence Act there must be material to show that soon before her death the victim was subjected to cruelty or harassment based on dowry demand. But since this circumstance is lacking in this case, no offence under section 304B I.P.C. is made out on the basis of the evidence on record. 20. Hence, I find that the learned trial court was not justified in convicting the appellant under section 304B I.P.C. As regards 498A I.P.C., though evidence has been led to prove that the victim was tortured for dowry, there is no direct evidence of any witness in this regard. The evidence of P.Ws. 6, 9 shows that they had learnt about this from the deceased. But such evidence though admissible in respect of the offence under 8 section 304B by virtue of section 32(1) of the Evidence Act being dying declaration, is not admissible for offence under section 498A. Dying declaration is not applicable to offence under section 498A which do not relate to declarants death (vide Gananth Pathak vs. State of Orissa, (2002) 2 SCC 619). Therefore, on the evidence adduced by the prosecution no offence under section 498A also is established against the appellant. 21. In view of the discussions made above, the conviction and sentence passed by the trial court against the appellant is set aside. The appeal is allowed. ( Rekha Kumari,J.) PATNA HIGH COURT The 20th May,2008 Surendra/N.A.F.R.