Binod Ravidas And Ors vs State Of Jharkhand

Shree Chandrashekhar, J

Both mother and son have been charged under section 304-B/34 of the Indian Penal Code for dowry death of Rekha Devi and under section

302/34 of the Indian Penal Code for committing her murder.

In S.T No. 36 of 2009, the appellants have been convicted under section 304-B of the Indian Penal Code and sentenced to R.I for life for the said

offence.

The charge under section 302/34 of the Indian Penal Code has failed.

The informant, namely, Reshmi Devi is mother of the deceased. On the basis of her fardbeyan, Dumari P.S. Case No. 52 of 2008 was registered

on 23.09.2008 under section 302/34 of the Indian Penal Code against Binod Ravidas and his parents. After the investigation, a charge-sheet was

submitted against Binod Ravidas and Kalawati Devi.

During the trial, the prosecution has examined 7 witnesses; the informant is P.W.4.

The essential ingredients under section 304-B of the Indian Penal Code are that: (i) death of woman has been caused by any burn or bodily injury or

otherwise than under normal circumstances, (ii) the death has occurred within 7 years of her marriage, and (iii) soon before her death the victim was

subjected to cruelty or harassment by her husband or any relative of her husband for or in connection to any demand for dowry. Section 113-B of the

Indian Evidence Act provides that if it is shown that soon before her death a woman was subjected to cruelty or harassment for or in connection with

any demand for dowry, the court shall presume that the accused has caused the dowry death.

The offence under section 304-B IPC has been inserted in the Indian Penal Code by way of Amendment Act, 1986. A corresponding amendment

was made in the Indian Evidence Act, 1872 by which section 113-B was inserted to raise a presumption of dowry death. The language employed in

section 304-B IPC and section 113-B of the Evidence Act would reveal a common point of reference in both the provisions; the woman must have

been “soon before her death†subjected to cruelty or harassment for or in connection with the demand of dowry. In “Baijnath and Others Vs.

State of Madhya Pradesh†reported in (2017) 1 SCC 101, the Hon'ble Supreme Court has dealt with the presumption under section 113-B of the

Evidence Act, 1872 and proof of cruelty or harassment, thus;

“29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with

any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the

proof of the fact that the deceased lady had been subjected to cruelty or harrassment for or in connection with any demand for dowry by

the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the

otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.

A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of

the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113-B of the Act against the

accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the

statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent, coherent and

persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge

only of the presumption to cover up the shortfall in proof.â€​

To establish that death of Rekha Devi has occurred within 7 years of marriage the prosecution has examined the informant who has stated that

marriage of her daughter was solemnized with Binod Ravidas about 3 years prior to the occurrence. There is no serious challenge by the defence to

the fact that Rekha Devi has died within 7 years of her marriage. She has been found dead in her marital home is also proved by the prosecution. The

prosecution witnesses as well as the defence witnesses have spoken about dead body of Rekha Devi found on a cot in her matrimonial home in burnt

condition.

Dr. Sunil Kumar Singh, who has conducted the post-mortem examination on 24.09.2008, has found 65 to 70% burn injury on the person of Rekha

Devi. Her head, neck and the whole upper right limb as well as the inner part of left upper limb including the chest and abdomen of Rekha Devi were

found burnt. According to the doctor, the death has occurred between 24 to 36 hrs. from the post-mortem examination and the cause of death was

epidermal burn injuries. During his cross-examination, the doctor has stated that he cannot say whether it was an accidental or suicidal death.

In any case, Rekha Devi has met with an unnatural death stands established by the prosecution.

The defence taken by the appellants is that Rekha Devi caught fire while cooking food in her house and that is how she has died.

The appellants have not led any evidence on accidental death of Rekha Devi nor have they shown from the prosecution's evidence that it was a

case of accidental death by fire. In view of section 304-B of the Indian Penal Code read with section 113-B of the Indian Evidence Act once the

prosecution prima-facie establishes that the death has occurred otherwise than the normal circumstances, the onus shifts on the accused. Now, it is

for the accused to show that the death has not occurred otherwise than under normal circumstances.

In her fardbeyan, the informant has specifically stated about harassment and torture of her daughter at the hands of the appellants. She has also

spoken about demand of dowry by them. In the court, she has reiterated her statement recorded in her fardbeyan. She has stated that about 9 days

prior to the date of occurrence her daughter had visited her and complained about ill-treatment by her husband and mother-in-law. She has informed

her that due to non-fulfillment of demand of motor-cycle her husband and mother-in-law were harassing her. The expression “soon before the

death†is not capable of any straight jacket definition but it has been interpreted by the Supreme Court in its judgments as to indicate a live nexus

between the demand of dowry and the death. It all depends on the facts of a particular case; it may be one month in a case but three months in

another.

The testimony of the informant on demand of dowry and harassment and torture of her daughter soon before her death has remained unshaken.

Both the appellants have simply denied the incriminating circumstances which were put to them during their examination under section 313 of the

Code of Criminal Procedure. An evasive reply or unsatisfactory reply of an accused or even non-explanation to any incriminating circumstance by an

accused during his examination under section 313 of the Code of Criminal Procedure cannot be the sole basis for his conviction, but then, a husband

must say how his wife has died in her marital home. Under section 106 of the Indian Evidence Act a presumption can be raised for the reason that it

would be within the exclusive knowledge of the husband how his wife has died and, that too, under unnatural circumstance and in her matrimonial

home. In the present case, no explanation is coming forth from the husband. The Hon’ble Supreme Court in the case of “Trimuk Maroti Kirkan

Vs. State of Maharashtraâ€​ reported in (2007) 1 SCC (Cri) 80 has held thus:

“15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be

upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is

required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the

Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was

committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the

burden to establish its case has entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

In a case based on circumstantial evidence where no eye witnesses account is available, there is another principle of law which must be

kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no

explanations or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances

to make it complete.â€​

The presumption under section 106 of the Indian Evidence Act, however, cannot be drawn against all the family members and it would depend on

the facts and circumstances of case but normally it should be seen whether the other inmates were in the house when the incident has taken place.

The prosecution has failed to prove that around the time Rekha Devi has died, the appellant no. 2 was at home. Her acquittal for the charge under

section 302/34 of the Indian Penal Code would indicate that no evidence on her complicity in the crime has been found by the learned Additional

Sessions Judge, Giridih and for that reason, conviction of the appellant, namely, Kalawati Devi is found not sustainable.

However, against the appellant, namely, Binod Ravidas the prosecution has established; (i) demand of dowry, (ii) about 9 days prior to the

occurrence Rekha Devi informing her mother about her harassment and torture, (iii) death within 7 years of marriage, and (iv) unnatural death of

Rekha Devi. The defence witnesses â€" D.W.1 and D.W.2 â€" are not the eye-witnesses. They have stated that they have seen Rekha Devi in burnt

condition in her house. Their evidence is of no avail to the defence rather, on death of Rekha Devi in her marital home they have supported the

prosecution story.

In the aforesaid state of affairs, we find that the prosecution has established the charge under section 304-B of the Indian Penal Code against

Binod Ravidas and, accordingly, Criminal Appeal (DB) No. 658 of 2011 is dismissed. However, Criminal Appeal (DB) No. 532 of 2011 preferred by

the appellant, namely, Kalawati Devi is allowed.

The appellant, namely, Kalawati Devi in Criminal Appeal (DB) No. 532 of 2011, who is on bail, is discharged of liability of the bail-bonds furnished

by her.

We appreciate the assistance rendered by Mrs. Kiran Choubey, the learned Amicus who has argued Criminal Appeal (DB) No. 658 of 2011.

The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus as per Notification dated 23.11.2017.

Let a copy of the Judgment be transmitted to the court concerned through FAX.

Let the lower-court records be sent to the court concerned forthwith.