Bipin Kumar Rai and Another vs State of Bihar

D.P.S. Choudhary, J.—This appeal is directed against the judgment and order dated 24-6-1998 passed by the 1st Additional Sessions Judge, Samastipur in Sessions Trial No. 196 of 1989, whereby and whereunder the trial Court has convicted the appellant u/s 306 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act and sentenced them to undergo R.I. for four years and R.I. for six months respectively to each of the appellants. These sentences have been directed to run concurrently.

The prosecution case in brief is that the informant Ramdeo Rai (P.W. 8) married his daughter Shanti Kumari with the accused-appellant Bipin Kumar Rai in the year 1984 in the month of May. At the time of marriage, the father of the accused Bipin Kumar Rai has taken Rs. 15,000/- in cash as dowry besides article worth Rs. 4,000/- from the informant. The informant''s daughter Shanti Kumari went to her Sasural after tht, marriage. The informant subsequently went her sasural for Roksadi but the accused-persons and the father of Bipin Kumar Rai, namely, Bindeshwar Rai were not readily agreeable for Roksadi and there was a demand of Rs. 5,000/- in cash and a new motorcycle pre-condition for Roksadi. They, threatened that unless the above demand is not fullfiled they shall not perform Roksadi. In the month of August 1984, the informant promised to pay Rs. 5,000/- in cash and a motorcycle at the time of Roksadi, thereafter, the informant''s daughter was sent to her Naihar. In the month of December 1985, at the time of Roksadi of informant''s daughter, her husband and other members of the family insisted on the payment of Rs. 5,000/- and a motorcycle, and threatened that in future she shall not be sent to her Naihar if these demands are not fulfilled. It is further, case of the prosecution that whenever the informant or any family member went to meet her in sasural the appellants and father-in-law of Shanti Kumari did not allow them to meet her, and there was a regular demand of the above articles as dowry and pre-condition for Roksadi There is also allegation that for non-fulfilment of these demands they started torturing her. It is further case of the prosecution that 20-4-1986 was the date fixed for the marriage of the son of the informant. The informant himself went to his daughter''s sasural for her Dwiragman three days before the date fixed for the marriage of his son. But, the accused-persons did not: allow his daughter to go her Naihar to attend the marriage of her brother and they again insisted that she would go her Naihar only after the above demands as dowry are fulfilled. On 19-4-1986, the elder son-in-law of the informant went to bring Shanti Kumari (deceased) from her sasural but she was not sent by her sasural''s family members including the husband. They reiterated the above demands. On the next day, i.e. on 20-4-1986 the informant''s uncle Ram Charitra Rai (P.W. 1) and his elder son-in-law Ram Bishekh Rai (P.W. 3) again went to bring the deceased Shanti Kumari from her sasural but both the appellants refused to send her to her Naihar, They, and their servant Sant Lal Mahto closed the door of the house and did not allow them to meet Shanti Kumari (deceased) on the ground that she was in-disposed. They returned back without meeting Shanti Kumari. It is further case of the prosecution that on that very day at about 9.00 a.m. the informant was informed by his villager Babu Lal Rai that appellants (accused) and other family members had poisoned his daughter to death and concealed the dead body in their house. The informant rushed to the Police Station, Samastipur Muffasil and on his fardbeyan the case was registered and the charge-sheet was submitted against three accused-persons, who faced the trial, but the lower Court acquitted accused Sant Lal Mahto and convicted both the appellants as indicated above.

The case of the defence is that they have been falsely implicated in this case and the deceased Shanti Kumari committed suicide of her own as she was in mental depression. There was neither any demand of dowry nor she was pressurised by the accused-persons to commit suicide.

In all 18 witnesses have been examined on behalf of the prosecution, out of which P.W. 4 (Shivji Mahto) P.W. 5 (Rameshwar Prasad), P.W. 6 (Anand Shukla) and P.W. 18 (Ram Kumar Jha) are formal witnesses who have proved F.I.R. (Ext. 1), inquest report (Ext. 2) and signature on fardbeyan (Ext. 7). P.W. 7 (Babu Lal Rai), P.W. 13 (Awadhesh Kumar Rai), P.W. 15 (Ram Naresh Rai) and P.W. 16 (Vishwanath Mahto) have been tendered by the prosecution. P.W. 10 (Gena Rai), P.W. 11 (Manoj Kumar Mahto), P.W. 12 (Ramchandra Mahto), P.W. 14 (Vishnu Prasad) and P.W. 17 (Kailash Pati Sharma) have been declared hostile by the prosecution. The material witnesses in this case are P.W. 1 (Ram Charittar Rai), P.W. 2 (Ram Narain Rai), a co-villager of the informant, P.W. 3 (Ram Bishekh Rai), son-in-law of the informant, P.W. 8 (Ramdeo Rai), the informant and P.W. 9 (Dr. Ved Bhanu Prasad) who conducted the post-mortem on the deceased and proved the post-mortem report (Ext. 6). Informant has proved the fardbeyan (Ext. 3), seizure-list Ext. 4) and protest petition filed by him against the police (Ext. 5).

P.W. 1 (Ram Charittar Rai) stated that Shanti Kumari was married with the accused-appellant Bipin Kumar Rai. In her sasural her husband and his parents used to demand Rs. 5.000/- in cash and a motorcycle. Because her father did not give these articles she was tortured. On the point of occurrence dated 20-4-1986, he stated that he and Ram Bishekh Rai (P.W. 3) had gone to the sasural of the deceased for her Roksadi but they were not allowed to meet the deceased Shanti Kumari and they were abused by the appellants. He further stated that earlier Ramdeo Rai (P.W. 8) the informant has himself gone for Roksadi of Shanti Kumari but she was not sent to her Naihar along with her father. The appellants made demands as mentioned above including cash of Rs. 5,000/- and a motorcycle and asked the informant that unless these demands are not met her Roksadi would not be performed. He learnt from Babu Lal Rai at his house that Shanti Kumari has been done to death.

P.W. 2, a co-villager has supported the evidence of P.W. 1 on the point of demand of Rs. 5,000/- and a motorcycle by the appellants and a pre-condition for her Roksadi. P.W. 3 (Ram Bishekh Rai) stated that at the time of marriage of Shanti Kumari, the informant (P.W. 8) had given Rs. 15,000/- in cash and articles worth Rs. 4,000/- to the father-in-law of Shanti Kumari and thereafter, the marriage was performed. Later on the accused-persons started demanding Rs. 5,000/- and a motorcycle and declined to perform Roksadi unless the demand was not meet. Thereafter the informant got the Dwiragman done of the deceased on the promise that he would give the cash amount as well as the motorcycle at the time of Bidagari of the deceased which was to be performed later on. When her husband came for Bidagari, he again demand Rs. 5,000/- and a motorcycle and when the informant failed to fulfil his demand Shanti Kumari was taken to her Sasural on Bidai with a threat that she would not be sent back Naihar unless these demands are met. He further stated that the informant beside he along with P.W. 1 went to her sasural but they were not allowed to meet her and in his presence again the above demands were made by the appellants. At the time of marriage of his Sala (Ram Kumar) son of the informant he himself went to her sasural for Bidai about 4.5 days before the date of marriage but the accused-persons did not allow her to go Naihar for attending the marriage of her brother and there was again demand of the above articles in their presence. He further stated that on 19-4-1986 he along with P.W. 1 again went to her sasural for Bidai but they refused to perform Bidai unless the above demands were met. He further stated that on 20-4-1986 in the morning, they again went to her Sasural for Bidagari but with the same result and they were not allowed to meet Shanti Kumari (deceased). He further stated that out of his own he offered Rs. 1,000/- but the accused-appellant Meera Devi did not agree and was adamant that unless the entire amount of Rs. 5,000/ and a motorcycle is not met there would be no Bided of Shanti Kumari. He further stated that on the same day at 9.00 a.m. he was informed by Babu Lal Rai that Shanti Kumari has been done to death at the hands of the accused because the demands were not met by the informant,

The evidence of P.W. 3 (Ram Bishekh Rai) corroborates on all the material points the evidence of P.Ws. 1 and 3. P.W. 3 is son-in-law of the informant and deceased was his Sali. He stated that after the marriage when his father-in-law went for her Dwiragman the demand of Rs, 5,000/- in cash and a motorcycle was made by the appellants and they threatened that unless the demand is met her Dwiragman shall not be performed. However, on the assurance of the informant Dwiragman was performed in the month of December 1984. Thereafter, her husband came to his sasural (informant''s house) and performed the Roksadi of his wife but threatened that in future she would not be allowed to go to her Naihar unless the above demands are fulfilled. He further stated that thereafter whenever he or the informant went to the sasural of Shanti Kumari they were not allowed to meet her by the appellants. He further stated that for bringing this amount in Dahej from her Naihar Shanti Kumari was regularly tortured, assaulted and abused. The marriage of Ram Kumar Rai, the brother of deceased was fixed on 20-4-1986, 3-4 days earlier he visited her sasural along with the informant but her Bidai was not performed because they were unable to fulfil the demands. The witness stated that before 20th of April. 1986, he again visited twice the sasural of Shanti Kumari and made request to the appellants for her Bidai as the marriage of her brother was to be solemnized on 20-4-1986 but to no effect. In the morning of 20-4-1986, he had gone to the sasural of Shanti Kumari to make last effort of her Bided but the appellants were adment not to perform her Bidai. Even Rs. 1,000/- was offered to him and it was assured that rest of the demands will be fulfilled in future, but the appellants did not agree. Thereafter, he returned back to the house for the informant. On the same day at about 9.00 a.m., he learnt by Babu Lal Rai that Shanti Kumari has been murdered in her Sasural by poisoning,

P.W. 4 (Shivjee Mahto) stated that about six years back there was a Bhoj in the house of the informant Ramdeo Rai as the marriage of his son was going to be performed on that date. In his presence. Dr. Babu Lal Rai came and informed that Shanti Kumari has been murdered in her sasural by poisoning at the hands of her mother-in-law, husband (both the appellants) and their servant Sant Lal Mahto (since acquitted).

P.W. 8 (Ramdeo Rai) is the informant who has supported his case as made out in the fardbeyan. According to him, her daughter was married in the month of May 1984 with accused Bipin Kumari Rai and payment of dowry was made at that time. At the time of Roksadi there was a demand of Rs. 5,000/- and a motorcycle. On his assurance that he will fulfil their demands at the time of Dwiragman, she was allowed to come her Naihar. At the time of Dwiragman in the month of December 1985 her husband again made the demand and threatened that in future she will not be allowed to come back her home unless the above demand is fulfilled. Thereafter, whenever he visited her sasural, he was not allowed to meet her. They also used to torture and assault her. On the occasion of marriage of his son he tried his best for the Dwiragman of her daughter but the appellants did not allow her to go to her Naihar. He supported the evidence of P.Ws. 1 and 3 that on 20-4-1986, the date fixed for the marriage of his son in the morning they visited the house of the appellants and made request of the Bidai of Shanti Kumari (deceased) but to no effect and they returned back disappointed. On the same day at about 9.00 a.m., he was informed by Babu Lal Rai that her daughter has been murdered in her sasural by poisoning at the hands of the accused-appellants and their servant Sant Lal Mahto. He rushed to Samastipur P.S. where his fardbeyan (Ext. 3) was recorded. Thereafter, he visited the house of the accused-appellants and found his daughter lying dead. Near her dead-body, he found the plastic Sisi (bottle) containing four tablets and it was written on the bottle Salfex. This was seized by the Investigating Officer and seizure-list was prepared. He proved the seizure-list (Ext. 4), He further stated that inquest was also prepared in his presence.

P.W. 9 (Dr. Ved Bhanu Prasad) is Civil Assistant Surgeon who performed the post-mortem on the dead body of deceased Shanti Kumari on 20-4-1986 and found one ante-mortem injury on her body (abrasion over left wrist size 1" x 1/6"). She had no other external injury on her person. According to him, the cause of death could not be easily ascertained unless the Viscera report was available. Viscera was preserved for chemical examination but the report has not been brought 011 record.

On behalf of the defence, two witness have been examined. D.W. 1 (Surya Narain Rai) stated that on 20-4-1986 in between 8 to 9 a.m. he heard cry of Meera Devi from her house. He rushed there and found Shanti Kumari (deceased) lying on a cot and she was being treated, Shanti Devi stated that, she was consumed three tablets which is used for protecting wheat (pestiside). He denied that she was poisoned to death by the appellants. D.W. 2 (Awadhesh Kumar) stated that appellants never demanded Rs. 5,000/- in cash or a motorcycle in Dahej. He further stated that on the relevant dated (20-4-1986) on hulla he went to the house of the appellants and found Shanti Kumari alive who stated that by mistake she has consumed the tablets which is used for preserving the wheat from pests.

It was submitted on behalf of the appellants that from the allegation made in the fardbeyan and the evidence of P.Ws. 1. 2, 3, 4 and 8 as discussed above, no case under Sections 3 and 4 of the Dowry Prohibition Act is made out. The allegation of the prosecution is that at the time of marriage the informant gave Rs. 15,000/- in cash and articles worth Rs. 4,000/- as dowry and thereafter, the marriage was performed. It is also admitted fact that after the marriage the deceased Shanti Kumari came to her sasural. As per the prosecution case, the appellants were not performing her Roksadi or Dwiragman and made a condition for the payment of Rs. 5,000/- in cash and a motorcycle. From their evidence, it is further evidence that on 20-4-1986 the marriage of the brother of the deceased lady was to be performed and on that date in the morning P.Ws. 1 and 3 came to her sasural for her Roksadi but she was not allowed to go to her Naihar, On the same date at about 9.00 a.m., they learnt from one Babu Lal Rai that she was murdered by poisoning at her sasural at the hands of the appellants. The informant and others rushed to her sasural and found her dead body. Therefore, it is not the case of the prosecution that the alleged demand of Rs. 5,000/- and a motorcycle was a continuous demand of dowry which was made before the performance of the marriage of Shanti Kumari: This demand was made in ''Dahej'' and it was a precondition of the appellants that unless these demands were fulfilled they shall not performed her Dwiragman or Bidai. Admittedly this demand was made by the appellants after few months of her marriage. Section 4 of the Dowry Prohibition Act is applicable only to a case in which any property or valuable security was agreed to be given as consideration for marriage but the same was not actually given and, thereafter, the demand was made for the same. Therefore, no offence is made out in such a case where this demand was not part of the agreement of dowry to be given as consideration for marriage.

The learned appellants'' lawyer further referred to the provisions contained in Section 2 of the said Act and stated that any demand as dowry is to be made at or before or after the marriage as consideration for the marriage of the said parties. There is nothing in the fardbeyan or in the evidence to show that the demands made on behalf of the appellants had been agreed or promised to be given at or before or after the marriage as consideration of marriage. Rather, it is specifically mentioned in the fardbeyan and stated by the witnesses that said demand was made after the marriage in Dahej and appellants made these demands as precondition to perform the Dwiragman or Bidai, These demands were never part of the demand of dowry pre-condition for marriage. In support of the above contention, the learned appellants'' lawyer relied on a decision reported in Deo Narayan Lall Das and 5 Ors. Vs. The State of Bihar and Another ,

1 have gone through the contents of the fardbeyan and the evidences of the witnesses referred to above carefully. Since the said demands made by the appellants had not been agreed or promised to be given as consideration for the marriage, the same cannot amount to dowry in accordance with the definition of dowry which came into effect after the amendment of the Dowry Prohibition Act No. 63 of 1984,

In the facts and circumstances of the case, I find substance in the contentions made on behalf of the appellants that prosecution has failed to make out a case against the appellants under Sections 3 and 4 of the Dowry Prohibition Act. Accordingly, there conviction and sentence under this provision of the Act is set aside. And accordingly acquitted under these section of D.P. Act,

Another point that has been raised on behalf of the appellants is that the trial Court has come to the conclusion that there was no direct or circumstantial evidence to establish the allegation that deceased has been administered poisons by the accused-appellants. Therefore, they were not charged u/s 304B or 302 of the Indian Penal Code. The cause of death of deceased Shanti Kumari could not be proved conclusively. The Doctor (P.W. 9) and his report (Ext. 6) show that her cause of death could not be ascertained for want of visara report, which was not produced on behalf of the prosecution. The only evidence in this regard is that. P.Ws. 1, 2, 3, 4 and 8 were informed by one Babu Lal Rai that she was poisoned to death. Babu Lal Rai has been examined on behalf of the prosecution as P.W. 7 but. tendered for cross-examination. Thus, there is nothing in his evidence that he informed these witnesses about the cause of her death. The learned appellants'' lawyer further submitted that at best it can be said that deceased consumed some pesticide tablets which re-sulted in her death. On the basis of this circumstance, it cannot be said that these accused-appellants abated her suicide. The evidence of the prosecution is silent on this point.

In reply to the above contention, the learned A.P.P. submitted that according to Section 107 of the Indian Penal Code, a person is said to be abated the doing of the. thing (1) who instigate any person to do that thing (2) instigate as one or more person or persons in conspiracy for doing of that thing ; (3) intentionally aids, by any act or illegal commission, the doing of that, thing. Explanation of Clause (2) of Section 107 of the Indian Penal Code lays down that doubtful either prior to or at the time of commission of an act. does anything in order to facilitate the commission of that act and thereby facilitates the commission thereof is said to aid the doing of that act. In this case from the evidence of D.Ws. 1 and 2, it is crystal clear that she has taken some tablets which resulted in her death. Therefore, she consumed insecticide tablets resulting her death. These tablets (Ext. 4) had been seized from the house of the appellants where the deceased has died. The date of death of deceased is also relevant, She died on 20-4-1986. This was the dated when the marriage of her brother Ram Mumar Rai was going to be performed. The evidence of the informant (P.W. 8) supported by the evidence of P.Ws. 1 and 3, it is clear that they went to the house of the accused-persons for her Roksadi so that she could attend the marriage of her brother but the Roksadi was not performed because informant failed to fulfil the demands. It has come in the evidence of P.Ws. 1, 3 and 8 that deceased used to tell them that she was regularly tortured, abused and assaulted in her sasural at the hands of the appellants because their demands were not fulfilled by the informant. Even in the morning of 20-4-1986, P.W. 3 has gone to perform her Bidai so that she can attend the marriage of her brother, which was to be performed on that very date but she was not allowed to go to her Naihar. P.W. 3 returned back to the informant''s house disappointed. Only an hour thereafter, the deceased consumed insecticide tablets and died. Therefore, the act of the appellants in not performing her Bidai even on the occasion of marriage of her brother because their demands were not fulfilled was sufficient to instigate the deceased to commit suicide. She was also regularly tortured. Therefore, she was physically and mentally abated to commit suicide. These acts of the appellants facilitated in the commission of suicide committed by Shanti Kumari.

From the submissions made on behalf of the parties and after going through the above evidence and the provisions contained in Section 107 of I.P.C. I come to the finding that accused-appellants had abated the deceased to commit suicide. The accidental consumption of such insecticide tablets and administration of such poison by somebody is ruled out in this case in view of the evidence discussed above. The appellants created such circumstance which compelled the victim lady to commit suicide. Therefore, the prosecution has been able to prove that Shanti Kumari committed suicide as she was abetted to commit such act from the act and conduct of the appellants.

In the facts and circumstances of the case, I find and hold that the trial Court has rightly convicted the appellants for the offence punishable u/s 306 of the Indian Penal Code and it does not require any interference.

In the result, this appeal is allowed in part, with the above modification in the judgment and order of the trial Court.