Chedi Singh And Ors vs State Of Jharkhand

Shree Chandrashekhar, J

The entire family members of the husband of Suman Devi were named as accused by the informant in his fardbeyan which was recorded on

03.06.1990; the informant is uncle of the deceased.

The appellants, namely, Chedi Singh, Arun Singh, Shanti Devi, Reeta Singh (Devi) and Puran Singh have been convicted and sentenced to R.I for

life under section 304-B of the Indian Penal Code and R.I for two years and fine of Rs. 1,000/- each under section 498-A of the Indian Penal Code.

During pendency of this criminal appeal, the appellant no. 3, namely, Shanti Devi has passed away.

Mr. Satish Kumar Keshri, the learned APP states that an affidavit dated 27.08.2019 has been filed by P.S.I of Ichak Police Station. In this affidavit,

P.S.I of Ichak Police Station has stated that Shanti Devi has died on 06.01.2012. A death certificate dated 21.01.2012 on death of Shanti Devi has

been produced along with this affidavit.

Mr. Hemant Kumar Shikarwar, the learned counsel for the appellants states that he has no instruction to file an application for substitution of the

legal heirs of the appellant no. 3, namely, Shanti Devi in her place and, therefore, this criminal appeal qua the appellant no. 3, namely, Shanti Devi has

abated.

Ordered accordingly.

During the trial the prosecution has examined seven witnesses: the informant, who is uncle of the deceased, is P.W.2.

To prove the charge under section 304-B of the Indian Penal Code against the appellants, the prosecution has laid evidence on: (i) demand of

dowry, (ii) harassment and torture in connection to demand of dowry, (iii) death within seven years of marriage, and (iv) suicidal death of Suman Devi.

In his fardbeyan, the informant has stated that marriage of Suman Devi was solemnized with Arun Kumar Singh about four years ago and from the

wedlock they were blessed with a son. The accused persons complaining that sufficient dowry was not given at the time of marriage were not

permitting Suman Devi to visit her parents. They were demanding one cow and one bed in dowry and they were threatening Suman Devi to kill her if

their demand of dowry was not fulfilled. The informant has said that Satish Kumar Singh, cousin of the deceased and Prabha Kumari, her sister had

gone to her matrimonial home and in their presence the accused persons had assaulted Suman Devi. In his fardbeyan he has alleged that due to

harassment and torture in connection to demand of dowry Suman Devi has committed suicide by jumping in the well with her eight year old son, but in

the court he has turned hostile. His brother who has been examined as P.W.5 has deposed about harassment and torture of his niece and demand of a

cow and bed by the accused persons. He has produced an inland letter written by Suman Devi by which she has informed him about marpit and threat

by the accused persons if their demand for dowry was not fulfilled. The prosecution witness, namely, Satish Kumar Singh-P.W.1 has been projected

by the prosecution as an eye-witness. He has stated that he was present in the matrimonial house of Suman Devi when the accused persons assaulted

her in connection to demand of dowry. He has stated that she carrying her child jumped in the well in anger. The investigating officer has prepared the

inquest report of Suman Devi and her son Tinku in presence of Parmeshwar Mahto and Chatradhari Mahto, but during the trial the inquest witnesses

have not been examined.

The essential ingredients for constituting the offence punishable under section 304-B of the Indian Penal Code are;

(i) death within seven years of marriage, (ii) death caused by any burn or bodily injury or otherwise than under normal circumstances, and

(iii) soon before the death the victim was subject to cruelty or harassment by her husband or any relatives of her husband for or in connection with any

demand for dowry.

By the Amendment Act of 1986, section 304-B has been incorporated in the Indian Penal Code. A corresponding provision in section 113-B has

been inserted in the Indian Evidence Act, 1872 also. A conjoint reading of section 304-B of the Indian Penal Code and section 113-B of the Indian

Evidence Act reflects that before a presumption of dowry death is raised it must be shown that soon before her death the victim lady was subjected to

cruelty or harassment in connection with demand of dowry. In “Baijnath and others Vs. State of Madhya Pradesh†reported in (2017) 1 SCC 10,1

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 harassment 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 abovereferred offences cannot be held guilty by taking refuge

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

Death of Suman Devi has occurred within seven years of her marriage has been proved by the prosecution and to establish that soon before her

death Suman Devi was subjected to cruelty or harassment for demand of dowry, the prosecution has led evidence through P.W.1 and P.W.5. The

expression “soon before the death†is not capable of any precise definition. No straight-jacket formula can be evolved to find out whether soon

before her death a women was subjected to cruelty or harassment for or in connection with any demand of dowry. It would depend on facts of the

case and this exercise has been left to the courts to find out on the basis of the materials brought before him whether before her death a women was

subjected to cruelty or harassment.

In “Hira Lal Vs. State (Govt. of NCT of Delhi) reported in (2003) 8 SCC 80, the Hon’ble Supreme Court has observed as under:

“9. A conjoint reading of Section 113-B 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 “death occurring otherwise than in normal circumstancesâ€. The expression “soon

before†is very relevant where Section 113-B 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 by the prosecution. “Soon before†is a relative term and it would depend upon the circumstances of each case

and no straitjacket 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 113-B of the Evidence Act. The expression “soon before her death†used in the substantive

Section 304-B IPC and Section 113-B 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 or has received the goods knowing them to be stolen, unless he can account for their possessionâ€. 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.â€​

In “Kamesh Panjiyar @ Kamlesh Panjiyar Vs. State of Bihar†reported in (2005) 2 SCC 38,8 the Hon’ble Supreme Court has observed

as under:

“11. ….... 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 by prosecution. “Soon before†is a relative term and it would depend upon

the circumstances of each case and no straitjacket 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 113-B of the Evidence Act. The expression “soon before

her death†used in the substantive Section 304-B IPC and Section 113-B 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 beforeâ€

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 or 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 the 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 effects 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 mental equilibrium of the woman concerned, it would be of

no consequence.â€​

In the context of harassment and torture of Suman Devi at the hands of the accused persons, testimony of P.W.1 is relevant. According to the

prosecution he is an eye-witness. By now it is well-settled that conviction of an accused can be recorded on the basis of testimony of a solitary

witness if his evidence inspires confidence. The only requirement in law is that his evidence should be of such sterling quality that it leaves no manner

of doubt on complicity of the accused in the crime. Indeed, it is quality of evidence and not quantity of evidence which matters the most in a criminal

trial. Section 134 of the Evidence Act provides that no particular number of witnesses is required in a case for proof of any fact. But at the same time,

in a catena of judgments the Hon’ble Supreme Court has cautioned that before conviction is recorded on the basis of testimony of a solitary eye-

witness the court must satisfy itself about quality of the evidence. P.W.1 who claims that he was present at the time of the occurrence in the marital

home of Suman Devi, in paragraph no. 5 in his evidence has stated that he has not seen Suman Devi jumping in the well and the incident has happened

after he left for home. He has further admitted that before the incident he has never seen the accused persons assaulting Suman Devi. His conduct in

not informing the police, the village chowkidar and any other person whom he met while returning home makes his testimony suspicious. In his cross-

examination he has admitted that he has not informed the mother, sister and grandmother of Suman Devi or any other person in the village about the

occurrence. He has also admitted that there are 300 to 350 homes in the village Barwa and several families belonging to Rajput caste are also residing

in the said village, however, no one from the village has come forward to support the prosecution. P.W. 5 has stated that the accused persons have

harassed, tortured and committed marpit with his niece in connection to demand of dowry. He has further stated that after her marriage relationship of

Suman Devi with her in-laws was not good. In his cross-examination he has admitted that the accused persons never made a written demand and they

have made demand of dowry through her niece only. In paragraph nos. 20, 21 and 22 of his cross-examination he admits that; he has not discussed

demand of dowry by the accused persons with his agnates; the accused persons never made any demand from him, and; his niece was never

assaulted by the accused persons in his presence. He has stated that Rambriksh and Kamlesh are younger brothers of Suman Devi and at the time

when he has deposed in the court they were alive. He has further stated that about the incident he was informed by one Bajrangi Singh who was also

alive at that time. He has also stated that he had visited his niece in her matrimonial home with Dani Singh who is also alive. But, these persons have

not been examined by the prosecution during the trial. His statement in paragraph no. 5 of his examination-in-chief in which he has stated that

whenever he along with his brother, who is father of the deceased, had gone to bring back his niece the accused persons did not permit her to go with

them without fulfilling their demand of dowry is not corroborated by any other independent evidence. The father of the deceased has not been

examined during the trial and her mother Savitri Devi-P.W.6, uncle-P.W.2 and sister-P.W.3 have not supported the prosecution’s case and they

have been declared hostile at the instance of the prosecution.

In our opinion, on the basis of the aforesaid evidence it cannot be said that the prosecution has proved harassment and torture of Suman Devi in

connection to demand of dowry and, that too, soon before her death.

An inland letter written by Suman Devi has been marked during the trial as exhibit-1. This letter has been spoken of by P.W.1 and P.W.5; it was

written to P.W.5 but identified by P.W.1. In this letter the victim lady has made various allegations of her harassment and torture at the hands of the

accused persons and she has expressed her apprehension that she would be killed by them if their demand of dowry is not fulfilled. During his cross-

examination, P.W.1 has stated that he had no occasion to read the letter vide exhibit-1 written by Suman Devi and for the first time in the court he has

seen that letter. P.W.5 has admitted that no other letter written by Suman Devi is with him and in paragraph no. 27 of his cross-examination he says

that he has shown this letter to his family members, but none of the family members including P.W.1 has said so. He has stated that he has given this

letter to the police after about 1½ months to 2 months of the incident.

Now, the question which falls for determination is whether on the basis of exhibit-1 it cannot be held that soon before her death Suman Devi was

subjected to harassment and torture in connection to demand of dowry.

In “Pakala Narayana Swami Vs. King Emperorâ€​ reported in AIR 1939 PC 47, the Privy Council has held thus:

“….The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed.

The circumstances must be circumstances of the transaction; general expressions indicating fear or suspicion whether of a particular

individual or otherwise and not directly related to the occasion of the death will not be admissible.â€​

In “Shiv Kumar Vs. State of U.P.â€​ [Criminal Appeal No. 55 of 1966] the Supreme Court has held as under:

“The phrase ‘circumstances of the transaction’ is a phrase that no doubt conveys some limitations. It is not as broad as the

analogous use in ‘circumstantial evidence’ which includes evidence of all relevant facts. It is on the other hand narrower that ‘res

gestae’ [see Pakala Narayana Swami Vs. King Emperor]. As we have already stated, the circumstance must have some proximate

relation to the actual occurrence if the statement of the deceased is to be admissible under Section 32(1) of the Evidence Act…..â€​

On admissibility of statement of a dead person, in “Inderpal Vs. State of M.P.†reported in (2001) 10 SCC 736, the Supreme Court has held

thus:

“7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other

provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or

verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in

cases in which the cause of death comes into question…â€​

The letter written by a dead person is admissible in evidence under section 32 of the Evidence Act. Under sub-section (1) to section 32 of the

Evidence Act, the letter written by Suman Devi would have been admissible in evidence had it disclosed a relevant fact relating to the circumstances

which have resulted in her death. The letter written by her was produced by P.W.5 about one and half month of her death. This letter has been

proved by P.W.1 who has not seen it before. Except P.W.1, none of the prosecution witnesses has spoken about the letter written by Suman Devi to

P.W.5. The contents of this letter reveal her apprehension that if the demand of dowry of the accused persons is not fulfilled she would be killed by

them. But the letter of Suman Devi does not speak to cause of her death. It also does not relate to any of the circumstances of the transaction which

has resulted in her death. In her letter she has expressed her apprehension that she would be killed by the accused persons, but the case of the

prosecution is that Suman devi has committed suicide.

In our opinion, on such evidence the prosecution has failed to prove that soon before her death Suman Devi was subjected to harassment and

torture in connection to demand of dowry.

The presumption under section 304-B of the Indian Penal Code shall arise only when the prosecution has laid evidence to prove the facts

constituting the offence of dowry death. The case set up by the prosecution against the appellants that Suman Devi has committed suicide with her

son and, therefore, she has died in otherwise than normal circumstances is not proved by the prosecution. Noticing the earlier judgments of the court,

in “Rajiv Singh Vs. State of Biharâ€​ reported in (2015) 16 SCC 369, the Supreme Court has observed thus:

Whereas in Sultan Singh, this Court had propounded that a presumption under Section 113-B of the Evidence Act is attracted only in

case of suicidal or homicidal death and not in the case of an accidental death, it was proclaimed in Sher Singh that the harassment and

cruelty by the husband has to have a perceptible connection with the dowry demand for his prosecution and punishment under Section 304-

B IPC.

Dr. Shashi Bhushan Singh-P.W.7, who has conducted the postmortem examination on 03.06.1990, has opined that death of Suman Devi and her

son Tinku has been caused due to Asphyxia resulting from drowning. The doctor has not found any external injury on the person of the deceased and

in the opinion of the doctor cardio-respiratory failure was the cause of their death. The observation of the doctor that he has not found any external

injury on the body of the deceased person has to be seen in the light of the defence set-up by the appellants. The accused persons have taken a stand

that Suman Devi was suffering from mental illness and in support of their stand they have examined Basudeo Pandey-D.W.1. They have produced

several prescriptions of different doctors to show treatment of Suman Devi for mental illness. D.W.1 is a compounder but he has admitted in his

evidence that he has not worked with any of the doctors who have treated Suman Devi. The learned Sessions Judge has rejected the stand taken by

the appellants on the ground that the doctors who have treated Suman Devi were not examined during the trial.

In our opinion, on the basis of the evidences led by the parties, particularly, the medical evidence it would be extremely hazardous to hold that

Suman Devi has died a suicidal death. Accordingly, we hold that, the prosecution has failed to establish that Suman Devi has died a suicidal death.

It is elementary in every criminal trial that the prosecution has to prove its case beyond all reasonable doubt and on a presumption in law what has

been observed by the Supreme Court in “Shambhu Nath Mehra Vs. State of Ajmer†reported in AIR 1956 SC 40,4 that a presumption in law

does not relieve the prosecution of the burden of proving the necessary facts for constituting the offence, has to be kept in mind. It is also well-settled

that though evidence of the prosecution and the defence is tested by the same standard and yardstick, in a case in which the accused is facing trial on

the charge under section 304-B of the Indian Penal Code the burden would shift on the accused only after the prosecution has laid evidence

constituting the essential ingredients of dowry death.

Having held so, we find that the prosecution has failed to establish the charge under section 498-A and section 304-B of the Indian Penal Code

against the appellants and, accordingly, their conviction for the said offences in Sessions Trial Case No. 220 of 1992 is set-aside.

The appellants are acquitted of the criminal charges framed against them. The appellants, namely, Chedi Singh, Arun Singh, Reeta Singh (Devi)

and Puran Singh, who are on bail, shall stand discharged of liability of the bail-bonds furnished by them.

Accordingly, Criminal Appeal (DB) No. 161 of 2002 is allowed.

Let a copy of the judgment be transmitted to the Court concerned through ‘FAX’.

Let lower-court records be transmitted to the court concerned, forthwith.