Bijaya Bhoi vs State Of Odisha

S. K. Sahoo, J

The appellant Bijaya Bhoi faced trial in the Court of learned Additional Sessions Judge, Angul in Criminal Trial (Sessions) No.149 of 2004/36 of 2004 for offences punishable under sections 498-A/302/304-B of the Indian Penal Code and section 4 of the Dowry Prohibition Act.

The learned trial Court vide impugned judgment and order dated 28.03.2006 has been pleased to hold that the prosecution has not proved the charge under section 302 of the Indian Penal Code against the appellant and accordingly, acquitted him of such charge. However, learned trial Court found the appellant guilty under sections 498-A/304-B of the Indian Penal Code and section 4 of the Dowry Prohibition Act and sentenced him to undergo rigorous imprisonment for eight years under section 304-B of the Indian Penal Code, rigorous imprisonment for one year and to pay a fine of Rs.100/- (rupees one hundred), in default, to undergo rigorous imprisonment for one month more under section 498-A of the Indian Penal Code and rigorous imprisonment for six months and to pay a fine of Rs.100/-(rupees one hundred), in default, to undergo rigorous imprisonment for one month more under section 4 of the Dowry Prohibition Act and the substantive sentences were directed to run concurrently.

The prosecution case, in short, is that as per the first information report (Ext.1) lodged by Krushna Nahak (P.W.1) before the Officer in-charge, Handapa police station, Angul on 09.01.2004 is that his sister Bimala Nahak (hereinafter 'the deceased') had married to the appellant out of her love affair with him a year prior to the date of lodging of the first information report. Few days after their marriage, the deceased was subjected to physical and mental cruelty by the appellant in connection with demand of dowry and the appellant was also making aspersion against the deceased that she was having illicit relationship with others. It is stated that in connection with demand of one cycle and cash, the deceased was subjected to torture by the appellant. On 09.01.2004 at about 7.00 a.m., the informant received a message from one Sita Bhoi of his sahi that the deceased was lying in an unconscious state. Hearing such news, the informant and others rushed to the house of the appellant, where they found that the deceased was lying dead on the floor of the bed room. The appellant was present and he stated about commission of suicide of the deceased. The informant suspected that as the deceased was subjected to torture, the appellant had killed the deceased.

On the basis of the first information report, officer in-charge of Handapa Police Station registered Handapa P.S. Case No.5 dated 09.01.2004 for offences punishable under sections 498-A/304-B/302 of the Indian Penal Code and section 4 of the Dowry Prohibition Act against the appellant. P.W.8 Ratan Kumar Sahu, who was the officer in-charge of Handapa police station after registration of the first information report, took up investigation of the case. During course of investigation, he examined the informant and other witnesses, visited the spot and prepared the spot map (Ext.6) and he held inquest over the dead body in presence of the witnesses and prepared the inquest report (Ext.2). He also sent the dead body for post mortem examination to the District Headquarters Hospital, Angul. P.W.3 Dr. Ajay Chandra Das, who conducted post mortem examination noticed some bruises and abrasions in and around the neck and opined the injuries to be ante mortem in nature and submitted his report (Ext.4) in which it is mentioned that the cause of death was due to asphyxia and vasovagal shock due to throttling and time of death was within to 18 to 24 hours from the date and time conducting the post mortem examination.

The Investigating Officer seized the wearing apparels of the deceased as per seizure list (Ext.7) on production by the escorting party and he also seized the dowry articles from the house of the appellant vide Ext.5, which were released in favour of the informant under zimanama Ext.3. He also received the post mortem report of the deceased and forwarded the appellant to the Court on 11.01.2004 and then handed over the charge of investigation of the case to Muralidhar Baral (P.W.7), Circle Inspector of Police, Athamallik. P.W.7 sent the viscera of the deceased collected at the time of post mortem examination to the State Forensic Science Laboratory, Rasulgarh, Bhubaneswar for chemical examination and on completion of investigation, charge sheet was placed on 23.03.2004 against the appellant under sections 498-A/304-B/302 of the Indian Penal Code and section 4 of the Dowry Prohibition Act.

After submission of the charge sheet, the case was committed to the Court of Session after observing due formality where the learned trial Court framed charges against the appellant on 19.08.2004 and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish guilt of the appellant.

During course of trial, in order to prove its case, the prosecution examined eight witnesses.

P.W.1 Krushna Nahak is the brother of the deceased and he is the informant in this case and he stated about the demand of dowry and torture on the deceased due to non-fulfillment demand of dowry and also stated that the appellant committed murder of his deceased sister. He is also a witness to the inquest vide Ext.2.

P.W.2 Sabitri Nahak is the mother of the deceased and she stated about the disclosure made by her deceased daughter before her regarding the demand of dowry of cash of Rs.5,000/- (five thousand) and one cycle and also torture made by the appellant due to non-fulfillment of the dowry demand. She stated that on getting information from Sita, the aunt of the appellant, she along with P.W.1 proceeded to the house of the appellant and found injury on the neck of the deceased and the dead body of the deceased was lying on the floor of the in the bed room of the appellant.

P.W.3 Ajay Chandra Das is the doctor, who was working as Orthopaedic Specialist at District Headquarters Hospital, Angul, conducted post mortem examination of the dead body of the deceased and noticed some bruises and abrasions in and around the neck and opined the injuries to be ante mortem in nature and submitted his report Ext.4 in which it is mentioned that the cause of death was due to asphyxia and vasovagal shock due to throttling and time of death was within to 18 to 24 hours from the date and time conducting the post mortem examination.

P.W.4 Debaraj Naik is the paternal uncle of the deceased and he stated that when he received the information about the death of the deceased, he rushed to the house of the appellant on the next day of the occurrence and found the dead body of the deceased in the house of the appellant. He also stated that the police held inquest over the dead body of the deceased in his presence and prepared the inquest report vide Ext.2 and he also found the injuries on the neck of the dead body of the deceased.

P.W.5 Ajay Bhoi is the labourer and he stated that one Sita, the aunt of the appellant came and told that the appellant killed the deceased by pressing her neck and the deceased died after nine months of her marriage. He also stated that the appellant physically and mentally tortured the deceased demand dowry and he also stated that the police held inquest over the dead body of the deceased in his presence and prepared inquest report vide Ext.2.

P.W.6 Biranchi Narayan Bhoi is the seizure witness and he stated that about the seizure of household articles from the house of the appellant under seizure list Ext.5.

P.W.7 Muralidhar Baral, was the Circle Inspector of Police, Athamallik, who as per the order of Superintendent of Police, took charge of investigation of the case from Ratan Kumar Sahu (P.W.8), the then officer in-charge of Handapa Police Station. He sent the viscera of dead body of the deceased collected through the Medical Officer of Handapa Government Hospital to the State Forensic Science Labouratory, Rasulgarh for examination and after obtaining the order of Superintendent of Police, he submitted charge sheet.

P.W.8 Ratan Kumar Sahu was the Officer in-charge of Handapa police station. He was the Investigating Officer of the case and on his transfer, he handed over the charge of investigation to P.W.7.

The prosecution exhibited seven documents. Ext.1 is the written first information report, Ext.2 is the inquest report, Ext.3 is the zimanama, Ext.4 is the post mortem examination report, Exts.5 and 7 are the seizure lists, Ext.6 is the spot map.

The defence plea of the appellant is one of denial. Defence has examined one witness i.e. D.W.1 Bhaba Bhoi, who stated that the deceased was living happily with the appellant after their love marriage and in Khetriya Samaj no bridegroom demands dowry.

The learned trial Court after assessing the evidence on record has been pleased to hold that the medical evidence provided by P.W.3 proves that the deceased met with an unnatural death, which was homicidal in nature. It was further held that the prosecution evidence clearly indicates that the deceased was subjected to harassment and was tortured before her death. Learned trial Court further held that though the prosecution has not successfully established the charge under section 302 of the Indian Penal Code and acquitted the appellant of such charge but found him guilty under sections 498-A/304-B of the Indian Penal Code and section 4 of the Dowry Prohibition Act.

Mr. Asutosh Tripathy, learned counsel appearing for the appellant contended that learned trial Court has not assessed the evidence on record in its proper perspective and the basic ingredients of the offence under section 304-B of the Indian Penal Code is lacking inasmuch as there is no material on record that soon before the death of the deceased, she was subjected to physical and mental cruelty in connection with demand of dowry. Learned counsel further submitted that the marriage between the appellant and the deceased was a love marriage and the evidence on record indicates that they were pulling on well and the parents of the deceased were in visiting terms to the house of the appellant. It is further submitted that so far as the other charges are concerned, the appellant was taken into custody in connection with this case on 11.01.2004 and he was not released on bail during trial and after filing of the appeal, he was granted bail by this Court as per order dated 05.04.2010 and therefore, he has already undergone substantive sentence of more six years and two months and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant.

Mr. A.K. Beura, learned Additional Standing Counsel, on the other hand, supported the impugned judgment and contended that the appellant was staying with the deceased at the relevant point of time and number of bruises and abrasions were noticed on the person of the deceased as per the post mortem report, which were opined to be ante mortem in nature and the cause of death was asphyxia and vasovagal shock due to throttling and the family members of the deceased have consistently stated about the physical and mental torture on the deceased and therefore, it cannot be said that the ingredients of the offence under section 304-B of the Indian Penal Code are not satisfied. It is further submitted that the victim was pregnant at the time of occurrence and the post mortem report indicates that the gestation period was 14 weeks and if there was nothing adverse circumstances and if the surrounding circumstances was not hostile, then the deceased could not have died committing suicide which plea has been taken by the appellant but the same has been negatived by the post mortem report findings. Learned counsel further submitted that in view of the clinching materials available on record, no infirmity can be found with the impugned judgment and therefore, the appeal should be dismissed.

Coming to the ingredients of the offence under section 304-B of the Indian Penal Code, the essential ingredients are as follows:-

(i) The death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;

(ii) Such death should be occurred within seven years of her marriage;

(iii) The deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;

(iv) Such cruelty or harassment should be for or in connection with the demand of dowry; and

(v) Such cruelty or harassment of the deceased should be soon before her death.

Section 113(B) of the evidence Act is also relevant which  deals with  presumption as  to the 'dowry death'. Presumption under section 113(B) is a presumption of law. On the proof of essential ingredients of offence under section 304-B of the Indian Penal Code, it becomes obligatory on the part of the Court to raise presumption that the accused committed 'dowry death'. In case of Raman Kumar -Vrs.- State of Punjab reported in (2009) 16 Supreme Court Cases 35, it has been held as follows:-

"16. A conjoint reading of Section 113B of the Evidence Act and Section 304-B IPC shows 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 the "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113B of the Evidence Act and Section 304-B IPC are 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 in by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no strait jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113B of the Evidence Act is present, with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can account for his possession. 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."

In the case of Ashok Kumar -vrs.- State of Haryana reported in (2010) 12 Supreme Court Cases 350, it has been held as follows:-

"14. We have already referred to the provisions of Section 304-B of the Code and the most significant expression used in the section is 'soon before her death'. In our view, the expressions 'soon before her death' cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme of the Act. Further, the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other.

We are of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. This Court in the case of Tarsem Singh v. State of Punjab: AIR 2009 SC 1454, held that the legislative object in providing such a radius of time by employing the words 'soon before her death' is to emphasize the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry related cruelty or harassment inflicted on her.

Similar view was expressed by this Court in the case of Yashoda v. State of Madhya Pradesh (2004) 3 SCC 98, where this Court stated that determination of the period would depend on the facts and circumstances of a given case. However, the expression would normally imply that there has to be reasonable time gap between the cruelty inflicted and the death in question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this Section. However, there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient whereafter, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of a given case."

The informant (P.W.1) has stated that the marriage of the deceased with the appellant was a love marriage. He further stated that while a marriage function was going on in their village, the appellant took away the deceased from the marriage function accepting her as his wife. He further stated that the appellant was a labourer. He further stated that the deceased was physically and mentally tortured by the appellant demanding a cycle and cash of Rs.5,000/- (rupees five thousand) and that they were unable to satisfy the demand of the appellant.

P.W.2, who is the mother of the deceased, also stated that the appellant demanded cash of Rs.5,000/- (rupees five thousand) and one cycle towards dowry and since the said demand was not satisfied, the appellant tortured the deceased both physically and mentally, which the deceased complained before them. However, in cross-examination, she has stated that the marriage between the deceased and the appellant was a love marriage and in their caste, the bridegroom does not demand dowry.

P.W.4 is the paternal uncle of the deceased and he has stated that the appellant married the deceased out of love and the appellant was pulling on well with the deceased and the parents of the deceased were visiting the house of the appellant.

P.W.5 Ajay Bhoi has also stated that the appellant was physically and mentally torturing the deceased for demand of dowry and in cross-examination, he has stated that he had seen the appellant assaulting the deceased.

Therefore, the evidence of the aforesaid witnesses, particularly P.W.1, P.W.2 and P.W.5 indicate that though it was a love marriage but demand was raised by the appellant for a cycle and cash of Rs.5,000/-(rupees five thousand) towards dowry and since the same was not fulfilled by the family members of the deceased, the deceased was subjected to physical and mental torture.

However, as rightly pointed out by the learned counsel for the appellant that there are no materials on record that soon before the death the deceased, she was subjected to cruelty in connection with demand of dowry, but the material on record, no doubt proves that the death of the deceased took place within seven years of marriage which is as one of the essential ingredients of section 304-B of the Indian Penal Code and in view of the evidence of the doctor, the learned trial Court has rightly held that the prosecution has proved that the deceased met an unnatural death, which was homicidal in nature. However, when the appellant has been acquitted of the charge under section 302 of the Indian Penal Code and such acquittal has not been challenged by the State and the evidence is lacking that soon before the death of the deceased, she was subjected to cruelty or harassment by the appellant in connection with demand of dowry, I am of the humble view that the ingredients of the offence under section 304-B of the Indian Penal Code are not satisfied.

So far as the other offences under section 498-A of the Indian Penal Code and section 4 of the Dowry Prohibition Act under which the appellant was found guilty are concerned, there are ample materials available on record and the finding of the learned trial Court that the prosecution has successfully established such charges is quite justified.

In view of the foregoing discussion, the conviction of the appellant under section 304-B of the Indian Penal Code is set aside and the conviction of the appellant under section 498-A of the Indian Penal Code and section 4 of the Dowry Prohibition Act and the sentence passed for such offences stands confirmed.

Accordingly, the Jail Criminal Appeal is partly allowed. Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action.

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