Hira Lal Sao vs State of Jharkhand

Heard, Mr. S. P. Roy, learned counsel appearing for the appellants and Mr. Shekhar Sinha, learned Addl. Public Prosecutor learned counsel for

the State.

The instant Criminal appeal is directed against the judgment of conviction dated 21.01.2004 and order of sentence dated 22.01.2004, passed by

the learned 1st Addl. District & Sessions Judge, Fast Track Court, Koderma, in Sessions Trial No.364 of 2000, whereby, both the appellants have

been convicted for the offence punishable under Section 304B I.P.C. and also under Section 498A I.P.C., and awarded rigorous imprisonment for

seven years under Section 304B I.P.C. and rigorous imprisonment for three years including fine amount of Rs.5,000/- each under Section 498A

I.P.C. and in default of payment of fine, rigorous imprisonment for one year to both the appellants. Both the sentences are directed to run

concurrently. The period of detention in jail custody shall be set off with the punishment awarded

The prosecution case, as made out in the written report submitted by the informant,Degan Saw before the Officer-in-charge, Jainagar Police

Station on 05.04.2000, stating therein that he is resident of Digwar under Barkatha Police Station in the District of Hazaribagh. The informant has

solemnized marriage of his daughter (Dilia Devi) with Hira Lal Saw, as per the Hindu Rites and Customs 4 years ago. It is alleged that at the time of

marriage, the informant has given gift, dowry, jewellery etc. as per his capacity. After the marriage, the son-in-law (Hira Lal Saw) and his mother

(Pipasia Devi) were asking for Rs.5,000/- from his daughter to bring the same from the parents’ house, for which they were pressurizing her and

also used to assault her. It is alleged that one week prior to death of his daughter, the informant’s daughter came to his house and asked

Rs.5,000/- and disclosed that, if the money is not given, the accused persons will not allow her to remain there and they will kill her and her dead-body

will be thrown. The informant pacified his daughter and sent her to her ‘Sasural’ by saying, that he will go there to pacify them. On 01.04.2000,

the daughter of the informant gave information, that her husband is trying to kill her by pressing her neck. Thereafter, the informant went to the

‘Sasural’ of his daughter on 02.04.2000 at Pispiro and found her daughter to be alone and no body was there. The informant has stated, that

today he got information that his daughter has been killed, as somebody informed him, on telephone and thereafter he went to the ‘Sasural’ of

his daughter, saw the dead-body of his daughter. The informant has claimed that his son-in-law and his mother have pressed the neck or by

administering poison, in greed of dowry and killed his daughter.

On the basis of the written report, the Police instituted Jai Nagar P.S. Case No.18 of 2000 dated 05.04.2000 under Sections 498A, 304B/34 of the

Indian Penal Code. 4. After investigation, the Police submitted final form in the form of charge-sheet vide No.44 of 2000 dated 23.07.2000, under

Sections 498A, 304B, 328/34 of the Indian Penal Code against both the accused persons.

The cognizance of the offence has been taken vide order dated 24.07.2000 and the case has been committed to the Court of Sessions vide order

dated 16.09.2000. The charge has been framed against both the appellants on 25.01.2001 under Sections 304B/34, 328/34, 498A of the Indian Penal

Code to which they pleaded their innocence and thus, they were put under trial.

The prosecution has examined altogether 11 witnesses apart from documentary evidence, up-to Exhibit-6 in order to prove its case, beyond all

reasonable doubt against the appellants.

Prayag Saw has been examined as  P.W.1 and has been declared hostile by the prosecution. Bandhan Saw, brother of the informant has been

examined as P.W.2. This witness has stated that the accused persons were demanding Rs.5,000/- from Dilia Devi and apart from that, they used to

demand Rs.5,000/- from the mother and father of Dilia Devi in his presence. This witness has further stated that Dilia Devi was abused and assaulted

at her ‘Sasural’ and after 8 days of their visit to her ‘Sasural’, they received information about murder of Dilia Devi. This witness has

further stated that he has seen the mark on the neck of the dead-body. This witness has further stated that Dilia Devi has been killed by the in-laws at

her Sasural by administering poison.

This witness has stated, during cross-examination, that he has stated before the Police that the husband and mother-in-law of Dilia Devi were

demanding Rs.5,000/- and they have also demanded the same from the mother and father of Dilia Devi in his presence. This witness has further

stated, that he has stated before the Police that there is mark on the neck of the dead-body. This witness has further stated that he has stated

before the Police that Dilia Devi has been killed by the husband and mother-in-law by administering poison. This witness has stated that

son-in-law and daughter-in-law were residing in the new house, whereas, mother was residing in the old house. This witness has stated in Para-10 of

his cross-examination that he cannot say the date and month on which Dilia Devi was tortured and assaulted nor he can say on which date and month

Rs.5,000/- was demanded. This witness has categorically stated, that with respect to the demand of money, she was abused by the in-laws andÂ

there is no cut mark on the neck of Dilia Devi, but there is sign of compression.

Learned counsel for the appellants, Mr. S.P. Roy has submitted, that the evidence of P.W.2 (Bandhan Saw) who is own brother of the informant

(P.W.7- Degan Saw), there are contradictions in his examination-in-chief. In the examination-in-chief, he has given exaggerated version by saying that

he has seen the accused persons demanding money from the parents i.e. father and mother of Delia Devi, which is not case of the prosecution, as

made out, in the First Information Report or evidence of informant, (P.W.7- Degan Saw). The evidence adduced by this witness cannot be relied

upon, as this witness has simultaneously stated before the Police that Dilia Devi has been killed by pressing her neck and simultaneously this witness

has said that Dilia Devi (deceased) has been killed by administering poison. Further, this witness has categorically stated in examination-in-chief and

during cross-examination that he has only heard about demand of money. This witness has categorically stated that the mother-in-law was residing

in the old house, whereas son and daughter-in-law were residing in the new house. This witness has categorically stated, in Para-10 of his

crossexamination that he cannot say about date and month on which the deceased was assaulted or money was demanded, rather he has categorically

clarified that he has heard that money was demanded.

 . Learned counsel for the appellants has further submitted, that this witness

(P.W.2) has further stated, that he has not found any cut mark on the neck of Dilia Devi (deceased), rather he has found mark of pressing on neck.

Learned counsel for the appellants has further submitted that considering the evidence in its totality, it seems that P.W.2 is not eye-witness to any of

the occurrences as he has himself admitted that he cannot say about date, time and month with respect to the assault or demand of money and he

has categorically stated, that this witness (P.W.2) had heard that money was demanded, as such, this witness has demolished his own version as made

in examination-in-chief , during his cross-examination.

Learned counsel for the appellants, on the basis of above premises, has submitted that this witness (P.W.2) has no credential, which can be relied

upon by the Court to convict the appellants.

Mr. Shekhar Sinha, learned Addl. Public Prosecutor appearing for the State has submitted, that there are contradictions, but those contradictions

are not vital. The learned trial Court has scrutinized the evidence before passing impugned judgment of conviction and order of sentence and the

learned Trial Court after scrutinizing the evidence has rightly passed the impugned judgment of conviction and order of sentence, against the

appellants.

Mahendra Yadav, a co-villager of the appellants has been examined as P.W.3. This witness has categorically stated that before the death, she

(Dilia Devi-deceased), was suffering from vomiting and loose motion and later on he heard that Dilia Devi has died.

During cross-examination, this witness has stated, that Delia Devi died because of ‘Diarrhoea’. The prosecution has not declared this witness to

be hostile as his evidence is consistent with his statement made under Section 161 Cr.P.C.

Learned counsel for the appellants has further submitted that although the case is not coming under the purview of Section 113B of the Evidence

Act, where onus is upon the accused, rather to bring the case under Section 113B of the Indian Evidence Act, some ingredients are required such as,

(a) Death must be within 7 years of marriage, (b)There must be demand of dowry, (c) Soon before the death, there must be evidence of torture upon

the victim (d) death must be unnatural.

Learned counsel for the appellants has submitted that these ingredients have not been fulfilled, as such, this witness (P.W.3) who has explained about

the death of Dilia Devi as because of Vomiting and loose motion, the effect of Diarrhoea in that area at relevant time, the appellants cannot be

convicted under Section 304B of the Indian penal Code.

Learned counsel for the appellants has submitted that the basic ingredients to constitute an offence under Section 304B I.P.C. is to bring the case

under Section 113B of the Indian Evidence Act, such as, the basic ingredients like demand of dowry is missing in this case.

Learned counsel appearing for the appellants has drawn attention of this Court towards the provisions of Section 2 of the Dowry Prohibition Act,

1961.

“Section 2 of the Dowry Prohibition Act, 1961 defines “dowry’ means any property or valuable security given or agreed to be given

either directly or indirectly â€

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person.

at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or mahr in case of persons to whom

the Muslim Personal Law(Shariat) applies.â€​

Learned counsel for the appellants while relying the provisions of Section 2 of the D.P. Act, has submitted that in this case, demand of Rs.5,000/-

which is in dispute, is not related with the marriage, as such, the said demand cannot be said to be dowry under the D.P. Act.

Learned counsel appearing for the appellants has also put reliance in the case of APPASAHEB AND ANOTHER VS. STATE OF

MAHARASHTRA, reported in (2007) 9 Supreme Court Cases 721, wherein it has been held that “correlation between the giving or taking of

property or valuable security with the marriage of the parties is essential â€" On facts held, demand for money on account of some financial

stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry â€" Hence, no demand

for dowry could be said to be made by accused â€" appellants.â€​

Learned counsel for the appellants has further submitted that unless and until, ingredients of Section 304B I.P.C. are constituted, the presumption

under Section 113B of the Evidence Act will not come into play.

Learned counsel appearing for the appellants has also put reliance in the case of Durga Prasad and Another Vs. State of Madhya Pradesh, reported

in (2010) 9 Supreme Court Cases 73 and in the case of Gurdeep Singh Vs. State of Punjab and Others, reported in (2011) 12 Supreme Court Cases

408 , the presumption under Section 113B of the Indian Evidence Act is not available, even if one of the ingredients is not made out.

Learned counsel for the appellants has submitted that there is no ingredients of demand of dowry. Secondly, the ingredients with respect to unnatural

death is also lacking as the witness, P.W.3 (Mahendra Yadav) has categorically stated, that the deceased died because of Diarrhoea and vomiting, as

such, the presumption of Section 113B of the Indian Evidence Act will not come into play to shift the onus upon the appellants.

Mr. Shekhar Sinha, learned Addl. Public Prosecutor appearing for the State has submitted that witness P.W.3 (Mahendra Yadav) has not been

declared hostile by the prosecution, as he has given the same statement what he has given under Section 161 Cr.P.C., as such, he has not been

declared hostile by the prosecution.

Ram Prasad Yadav has been examined as P.W.4. This witness has been declared hostile by the prosecution. Hiraman Saw has been examined as

P.W.5. This witness has stated that accused/ appellant, Hira Lal Sao, came to his house stating that his wife is in serious condition and asked for help

by coming to see her. When P.W.5 (Hiraman Saw) went to the house of the appellant- Hiral Lal Sao, he found that wife of appellant/accused, Hiral

Lal Sao was in serious condition. When he asked Hira Lal Sao as to whether he is calling a Doctor to see her and arranging some vehicle to take her

wife. Hira Lal Sao replied that Prayag Saw (P.W.1) has already gone to bring the vehicle. After two minutes, P.W.1 (Prayag Saw) has returned,

stating therein, that no vehicle is available. After that we brought the wife of Hiral Lal Sao to their old house and thereafter his wife died.Â

This witness has stated that he is neighbour of Hira Lal Sao, who is only son of his mother and the Dilia Devi (deceased) was only daughter-in-law of

Pipasia Devi (Mother-in-law). The relationship between mother-in-law and the daughterin-law was very cordial. He has never seen them quarreling.

This witness has further stated that the accused persons have never demanded any dowry nor there was any quarrel. This witness has categorically

stated that at that relevant time, the entire village was under the effect of Diarrhoea. He has further stated that for treatment of Dilia Devi and for

calling a Doctor, accused/appellant, Hira Lal Sao has tried his best, but the same was not available and that is the reason Dilia Devi (deceased) died

because of Diarrhoea.

Learned counsel for the appellants, Mr. S. P. Roy has submitted that this witness (P.W.5- Hiraman Saw) has also not been declared hostile by

the prosecution rather he has explained as to how Dilia Devi (deceased) died and that is the only reason, the entire village was suffering under the

effect of Diarrhoea and Dilia Devi was also suffering from the same. This witness has categorically stated that there was no quarrel between the

mother-in-law and the daughter-in-law and there was no demand of dowry, as stated by the witness (P.W.5- Hiraman Saw), next door neighbour of

the appellants.

Learned Addl. Public Prosecutor appearing for the State has submitted that the statement of (P.W.5- Hiraman Saw), is same as made out under

Section 161 Cr.P.C., before the Police, as such, he has not been declared hostile by the prosecution.

Jiv Lal Saw has been examined as P.W.6. This witness has stated that wife of accused/appellant, Hira Lal Saw died because of Vomiting and

loose motion. The vehicle could not be arranged by that time, the lady died. This witness has not been declared hostile by the prosecution.

Learned counsel for the appellants, Mr. S. P. Roy has submitted that P.W.3 (Mahendra Yadav), P.W.5 (Hiraman Saw) and P.W.6 (Jiv Lal Saw),

these witnesses have explained about the death of Dilia Devi because of loose motion and vomiting owing to Diarrhoea and they have not been

declared hostile by the prosecution, as such, their evidence remains intact which shows that the appellants have wrongly been convicted by the learned

trial court under Section 304B I.P.C., as the death of Dilia Devi (deceased) has properly been explained, which was beyond the control of the

appellants, as such, the impugned judgment of conviction and order of sentence under Section 498A and 304B I.P.C. is not sustainable in the eyes of

law.

Learned Addl. Public Prosecutor appearing for the State has submitted that the other witnesses have supported the case, but it is true that P.W.2

(Bandhan Saw), P.W.3 (Mahendra Yadav) or P.W.5 (Hiraman Saw) and P.W.6 (Jiv Lal Saw), have not been declared hostile by the prosecution

as they have supported the statement made under Section 161 Cr.P.C.

Degan Saw, informant of the case, has been examined as P.W.7. This witness (P.W.7) is the father of the victim Dilia Devi and own brother of

P.W.2 (Bandhan Saw) and P.W.8 (Chhotu Saw). This witness has proved his signature on the written report as Exhibit-1. This witness has stated that

his daughter has either been killed by administering poison or by pressing her neck. This witness has stated that the marriage was solemnized 4 years

ago and he could not say about condition of the marriage and nor he can produce any paper with respect to the marriage. This witness has stated that

his daughter was saying that please give him Rs.5,000/- as demanded by the in-laws, otherwise she will be killed. This witness has reiterated his

statement made in the written report, but during cross-examination, this witness has categorically stated that no 'Panchayati' was held with respect to

the torture or demand of Rs.5,000/- nor he has informed anybody about assault made upon Dilia Devi before Mukhiya or the police authorities. This

witness has stated that she has not been killed in her presence either by assault or by administering poison, rather this witness has admitted during

crossexamination that he has never informed about any person with respect to demand of Rs.5,000/-.

Learned counsel for the appellant has submitted, that the informant being the father of the deceased has filed this case, as his daughter died because

of Diarrhoea. Now a days, there is growing tendency of filing a false case, whenever a bride died, within a period of four years of marriage, by her

relative against the in-laws. In the present case, the informant has himself admitted that he has not informed any person with respect to demand of

Rs.5,000/- or assault made upon Dilia Devi (deceased). If any occurrence takes place, it is only after death, false allegation has been levelled by the

family member of the deceased. The learned trial court without scrutinizing the evidence properly, convicted the appellants, on the basis of the

statement of P.W.2 (Bandhan Saw), and P.W.8 (Chhotu Saw), who are own brothers of the informant (P.W.7), although the inquest report does not

show any external injury or any mark or sign on person of deceased as per column 5 and 6 of the inquest report.

Learned counsel for the appellants, Mr. S. P. Roy has submitted, that from perusal of Exhibit-6 (post-mortem report of the deceased), Doctor has not

found any external injury to corroborate that the deceased was killed by pressing her neck nor Doctor has found any sign of throttling or poisoning.

Learned counsel for the appellant has submitted that Exhibit -5 is the Viscera report and as per the Forensic Science Laboratory (F.S.L.) report,

“No metallic, alkaloidal, glycosidal, pesticidal or volatile poison could be detected in the portions of viscera described above.â€​

Learned counsel for the appellants has thus submitted that considering all these materials available on record on behalf of the prosecution,

coupled with the fact that

P.W.3 (Mahendra Yadav) , P.W.5 (Hiraman Saw) and P.W.6 (Jiv Lal Saw) who have clearly stated before the court that the deceased died because

of Vomiting and Diarrhoea, as such, the conviction of the appellants under Sections 304B and 498A of the Indian Penal Code is not sustainable in the

eyes of law.

Learned Addl. Public Prosecutor appearing for the State has submitted that the material available on record shows, that wife of the appellant no.1 died

within 7 years of marriage, in unnatural circumstances and the house of the informant was situated at a distance of 20 Kilometre from the house of

the appellant and if before her death, she was suffering from vomiting and Diarrhoea, the in-laws ought to have been informed, as such, it seems

that the lady has been killed. It is true that the inquest report does not show in Column 5 & 6 about any injury and the post-mortem report has not

disclosed about any opinion of the death. The viscera report does not suggest it as case of poisoning, but the impugned judgment of conviction and

order of sentence is based upon the material available on record, passed by the learned trial court.

Chhotu Saw (P.W.8) is the witness of inquest report, who has proved his signature as Exhibit-2 and the signature of Prayag Saw (P.W.1) on the

inquest report as Exhibit-2/1. But this witness (P.W.8) has categorically stated that there is a doubt that the deceased has been killed by administering

poison or by pressing her neck. This witness is a hearsay witness. He has not adduced any evidence in support of the prosecution case, as he is a

formal witness.

Awadh Kishore Singh (P.W.9) is the second Investigating officer and he has onlysubmitted charge-sheet on the basis of the investigation

conducted by P.W.10 (Gyaneshwar Jha), Sub Inspector of Police, Jainagar.

Gyaneshwar Jha has been examined P.W.10. This witness has stated that he hasbeen given investigation of the case and proved the endorsement

on 'fardbeyan' bearing signature of the Officer-in-charge, M. R. Bhargav as Exhibit-3. This witness has stated that the post-mortem report was

received by him and the viscera was preserved, which was sent on the direction of the Court before the Director, Forensic Science Laboratory,

Ranchi. This witness has stated that Bandhan Saw (P.W.2) in his statement has only stated that husband (Hira Lal Sao) was demanding Rs.5,000/-,

but he has never taken name of mother-in-law (Pipasia Devi). This witness (P.W.10) has further stated, that none of the witnesses have said before

him that there was mark or sign on neck of Dilia Devi (deceased), who was killed by husband and mother-in-law by administering poison.

Learned counsel for the appellants has submitted that P.W.9 (Awadh Kishore Singh) and P.W.10 (Gyaneshwar Jha) both are investigating officers of

the case and there is no evidence, as these two witnesses have admitted, that there was no mark of injury on the neck of the deceased nor any

witness has said before them that the deceased was killed by administering poison. The only evidence was that P.W.2 has said that Hira

Lal Sao has asked for Rs.5,000/-.

Learned counsel for the appellants has submitteds that whether such demand of Rs.5,000/-, if at all be accepted can not be termed, as dowry in view

of provisions made in Section 2 of the D.P. Act. If the amount of Rs.5,000/- is not part of the dowry, then no case under Section 304B of the Indian

Penal Code is made out nor there is any evidence to prove that the deceased was subjected to torture, as discussed above by the other prosecution

witnesses, as such, conviction of the appellants under Section 498A is also bad in law. Kaushlendra Kumar has been examined as P.W.11, He was

posted as Pharmacist in the Sub-Divisional Hospital, Koderma and this witness proved the F.S.L. Report as Exhibit-5 and Post-mortem report as

Exhibit-6.

Learned counsel for the appellants has submitted that the Doctor has not been examined in this case and this witness (P.W.11) is not a competent

witness to prove either F.S.L. Report or the post-mortem report, as such, benefit of doubt be given in favour of the appellants.

Learned Addl. Public Prosecutor appearing for the State has submitted that this witness, Kaushlendra Kumar (P.W.11) being Pharmacist posted at

Sub-Divisional Hospital, Koderma, is a competent witness who has been posted with the Doctor, who conducted the post-mortem examination and

prepared post-mortem report and thus, the post-mortem report has been proved and marked as Exhibit-6.

 Learned Addl. Public Prosecutor appearing for the State has further submitted that Forensic report is a report bearing the letter addressed to the

Court containing a report vide Letter No.530 dated 29.09.2001, as such, being a formal witness and Government employee, he has rightly proved the

Forensic report as Exhibit-5, being a competent witness. Learned counsel for the State has submitted that the impugned judgment of conviction and

order of sentence has rightly been passed by the learned trial court, on the basis of the material available on record.

Heard, Mr. S. P. Roy, learned counsel for the appellants and Mr. Shekhar Sinha, learned Addl. Public Prosecutor appearing for the State, as well

as from perusal of the records i.e. First Information Report, charge framed, evidence of all the eleven prosecution witnesses, documents upto Exhibit-

6 and statement of the appellants under Section 313 Cr.P.C., this Court is of the view that the prosecution has miserably failed to bring the ingredients

to invoke presumption under Section 113B of the Indian Evidence Act to shift the onus upon the appellants. The basic ingredients to constitute an

offence under Section 304B I.P.C. i.e. demand of dowry is completely lacking in this case, as Rs.5,000/- demanded after the marriage, which has got

no connection with the marriage and the same cannot be termed as dowry as per the provisions made under Section 2 of the D.P. Act and in view of

the judgment of APPASAHEB AND ANOTHER (supr). It is also true that the lady died within 7 years of marriage, but that death cannot be termed

to be a dowry death, as she (deceased) has died because of vomiting and Diarrhoea, as stated by P.W.3 (Mahendra Yadav), P.W.5 (Hiraman Saw)

and P.W.6 (Jiv Lal Saw) and those prosecution witnesses have not been declared hostile by the prosecution.

This Court is also of the opinion that there was no injury on the person of thedeceased either on the neck or any punctured injury showing

administering of the poison in the inquest report at column 5 and 6 of Exhibit-4. The Inquest report, Exhibit-4 is not mentioning about the same and the

post-mortem report as Exhibit-6, has not disclosed any opinion regarding death or any injury on person of deceased thus Viscera was preserved andÂ

subsequently sent before the Director, Forensic Science Laboratory, Ranchi, on the direction of the Court and as per the report of Forensic Science

Laboratory which has been proved and marked as Exhibit-5, no pesticides or anything was found in the viscera. Thus, the learned trial court has

acquitted the appellants under Section 328 I.P.C., but wrongly convicted the appellants under Section 304B and 498A of the Indian Penal Code.

This Court has also found that there is no evidence of assault or abuse and the ingredients is completely lacking under Section 498A I.P.C. for

constituting an offence as the investigating officer (P.W.10) has categorically stated that none of the witnesses have said before him that the

deceased was assaulted or abused. Hiraman Saw (P.W.5) has categorically stated that he being the next door neighbour of the appellants, Pipasia

Devi, who has only one son i.e. appellant no.1 (Hira Lal Sao) and only one daughter-inlaw (Dilia Devi), they have very good relationship. He has

never seen any quarrel or abuse or assault with Dilia Devi. P.W.5 (Hiraman Saw) has categorically stated that at that relevant time, the village was

under the effect of Diarrhoea and the lady died because of vomiting and Diarrhoea.

Under such background, coupled with the fact that the prosecution has not brought the case within the purview of Section 113B of the Evidence Act.

This Court is of the opinion that benefit of doubt must go in favour of the appellants.

Accordingly, the judgment of conviction dated 21.01.2004 and order of sentence dated 22.01.2004Â passed by the learned 1st Addl. District &

Sessions Judge, Fast Track Court, Koderma, in Sessions Trial No.364 of 2000, is hereby set aside.Â

Accordingly, the instant appeal stands allowed.

The appellants, who are on bail, they are discharged from the liability of their bail bonds.

Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.