Jitendra Singh and Another (in Jail) vs State

N.K. Mehrotra, J.—This is an appeal against the judgment and order dated 30.8.1990, passed by the Sessions Judge, Rae Bareli in S.T. No. 186 of 1988 convicting the Appellants u/s 304B of Indian Penal Code and sentencing each of them to undergo seven years rigorous imprisonment and further convicting them u/s 498A, I.P.C. and sentencing each of them to undergo rigorous imprisonment for two years and to pay a fine of Rs. 200 each.

I have heard the learned Counsel for the accused Appellants and Sri C. P. M. Tripathi learned Additional Government Advocate.

The prosecution case as stated in the First Information Report dated 24.5.1998 Exhibit Ka-1 lodged by Ram Bahadur Singh, uncle of the deceased Asha Devi is that deceased Asha Devi, daughter of Tej Bahadur Singh, was married to Jitendra Bahadur Singh four and a half years prior to the incident. She was residing with her husband in the house of her in-laws. She used to visit the house of her parents also. Jitendra Bahadur Singh and his family members used to make complaint for not fulfilling the demand of dowry and they were making demand of golden chain of two tola and a horse. Asha Devi refused to convey this complaint to her parents. Besides this, there was a demand of cash also. It is alleged that Tej Bahadur Singh was fulfilling the other demands and in spite that Jitendra Singh, his brother Guddu and father Lal Bahadur Singh, his mother and uncle Samar Bahadur Singh used to beat and harass deceased Asha Devi. A week prior to incident the accused persons have demanded the aforesaid items from Tej Bahadur Singh and Ashish Kumar son of Ram Bahadur Singh in Harchandpuri market and Tej Bahadur Singh had refused to fulfil. It is also alleged that accused Jitendra Bahadur Singh had planned to marry second time but Ram Bahadur Singh and others had told the father of that girl that Jitendra Singh is already married. It is alleged that because of these demands being not fulfilled, Jitendra Bahadur Singh, Guddu, Lal Bahadur Singh, wife of Lal Bahadur Singh and Samar Bahadur Singh burnt Asha Devi at about 12.00 in the night and the informant came to know at about 5.00 a.m. from Shiv Bux Singh. Jagdish Singh and Rudra Pal Singh of the village. On coming to know that Asha Devi was taken to hospital, Ram Bahadur Singh and others reached District Hospital, Rae Bareli at 7.30 a.m. whether they came to know that Asha Devi had already succumbed to burn injuries and her body was lying dead in the hospital. It is also alleged by the prosecution that Jitendra Singh and Samar Bahadur Singh were making attempt for the cremation of the dead body after panchayatnama. Thus first information report was lodged on 24.5.1988 at 9.55 a.m. where a criminal case was registered against the accused persons under Sections 147, 302, 498A, I.P.C. Investigation was entrusted to Circle Officer, Maharajganj. The Investigating Officer has inspected the spot on 24.5.1988 and prepared a site plan Exhibit Ka-8. The Investigating Officer reached the District Hospital, Rae Bareli where he got prepared panchayatnama Exhibit Ka-9 and other papers addressed to Chief Medical Officer along with photo lash and specimen of seal. The dead body was sent for post mortem. The Investigating Officer recorded the statement of witnesses. It was on 8.8.1988 informant Ram Bahadur Singh handed over a letter written by the deceased to her father, to the Investigating Officer. A memo of this letter was prepared which is Exhibit Ka-5. The letter written by the deceased by the same ''baby'' is Exhibit Ka-2, the post mortem report is Ka-3.

After completing the investigation, the Investigating Officer submitted a charge-sheet on 10.7.1988 against the accused Jitendra Singh, Lal Bahadur Singh, Samar Bahadur Singh and Krishna Devi under Sections 147, 302, 304B and 498A, I.P.C. The accused were charged firstly u/s 302/149, and subsequently under Sections 304B/149, I.P.C. and 498A, I.P.C. The accused pleaded not guilty and denied the charge. Accused Jitendra Singh has given statement u/s 313, Cr. P.C. that at the time of incident, he had gone to ease in the latrine and when he came out, he saw that his wife was burning and his younger brother was making attempt to extinguish fire and he also made an attempt to extinguish the fire. Before going to the latrine, he had asked his wife to make food hot. Accused Appellant Lal Bahadur Singh has given the statement that he had gone in ''katha'' in Paharpur along with his wife and on hearing about the incident, he came back and had taken away the deceased to the hospital.

Prosecution examined Ram Bahadur Singh P.W. 1, Dr. Ashok Kumar P.W. 2, Tej Bahadur Singh father of the deceased P.W. 3, Rudra Pal Singh P.W. 4, Jagdish Singh P.W. 5, Raj Kumari P.W. 6, Kamal Kishore Asthana P.W. 7, constable Umesh Chandra P.W. 8, Jagdish Narain Yadav, C.O. P.W. 9, Raj Bahadur Singh P.W. 10, Shiv Baran P.W. 11 and Virendra P.W. 12 and Girish Chandra Tiwari P.W. 13.

After taking into consideration the entire evidence, the learned trial court found Jitendra Singh and Lal Bahadur Singh guilty u/s 304B and Section 498A, I.P.C. and convicted the two accused to seven years rigorous imprisonment u/s 304B and two years rigorous imprisonment with a fine of Rs. 200 each u/s 498A, I.P.C. and he acquitted the other accused.

After hearing the learned Counsel for the accused Appellants and the learned Additional Government Advocate and after perusal of the impugned judgment and order, I find that the case of the defence is that Asha Devi succumbed to burn injuries in an accident in the kitchen when she was heating the cooked food for her husband at about 12 O''clock in the night when the husband had gone to ease in the latrine and accused Jitendra Singh and his brother had made an attempt to extinguish the fire caught by Asha Devi at the time of heating the cooked food in the kitchen.

Ram Bahadur Singh P.W. 1 is the uncle of the deceased and as he is the informant. He has proved the F.I.R. and he has made statement about the demand of dowry and harassment of Asha Devi soon before the incident. He had given the letter written by Baby, the deceased Exhibit Ka-2 to the Investigating Officer on 8.8.1998. P.W. 2 Dr. Ashok Kumar has proved the post mortem report and he has given the statement and anti-mortem injuries were the burn injuries of Ist to 4th degree in the whole body. P.W. 3 Tej Bahadur Singh is the father of the deceased and he has also corroborated the harassment of his daughter because of the demand of dowry. P.W. 4 Rudra Pal Singh, P.W. 5 Jagdish Singh and P.W. 6 Raj Kumari have been declared hostile. P.W. 7 Kamal Kishore Asthana, C.O. City has conducted the investigation, P.W. 8 constable Umesh Chandra Kanaujia is the formal witness, P.W. 9 is the Investigating Officer. P.W. 10 Raj Bahadur Singh and P.W. 11 did not support the prosecution story and have been declared hostile. P.W. 12 Virendra Singh S.I. is the Investigating Officer, P.W. 13 Girish Chandra Tiwari is the formal witness.

Learned Sessions Judge has recorded a finding that it is a case of dowry death. Section 113B of the Evidence Act is as follows:

113B. Presumption as to dowry death.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death, such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Section 304B of the Indian Penal Code reads as follows:

304B. Dowry Death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Explanation.-For the purposes of this Sub-section "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961.

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

In order to prove to charge u/s 304B, following ingredients should be proved: (i) death of woman should be caused by burns or bodily injury or otherwise than under normal circumstances ; (ii) such death should have occurred within seven years of her marriage ; (iii) the deceased must have been subjected to cruelty or harassment by her husband or any relative of her husband ; (iv) such cruelty or harassment should be for or in connection with the demand for dowry ; (v) such cruelty or harassment is shown made to the woman soon before her death.

Now, I have to see from the material available on record of the lower court whether these ingredients have been proved in this case.

It is admitted case and there is a clear finding of the learned Sessions Judge that Asha Devi succumbed to burn injuries under the circumstances other than the natural circumstances. It is also admitted that marriage of Asha Devi had taken place with Jitendra Singh within four and a half years prior to death in the house of in-laws.

There is evidence available on record that Asha Devi was subjected to cruelty by Appellants because of demand of dowry. This fact is proved by the statement of Ram Bahadur Singh informant P.W. 1, corroborated by the First Information Report and the letter of the deceased handed over to Investigating Officer on 8.8.1988. The letter was written by Baby which is the name of the deceased Asha Devi. P.W. 1 Ram Bahadur Singh has given a categorical statement about demand of dowry being made after the marriage. This statement is also corroborated by P.W. 3 Tej Bahadur father of the deceased.

In my opinion, Sessions Judge has rightly held that there is sufficient material to hold that deceased Asha Devi was being harassed because of the demand of dowry. Now the next question is whether such a demand and harassment because of the demand of dowry was made soon before the death. There are statements of P.W. 1 Ram Bahadur uncle of deceased and P.W. 3 Tej Bahadur Singh father of the deceased coupled with letter of the deceased which are sufficient to conclude that Asha Devi was being harassed because of the demand of dowry. This letter is duly proved. The contents of the letter show the mental torture of the deceased. In view of the above, I find that all the ingredients as required for proving the charge u/s 304B are proved by the prosecution in this case. If these ingredients are proved, then there is presumption u/s 113B of the Indian Evidence Act that the death was caused by such persons who harassed the deceased for demand of dowry. Now the burden lies on the accused to rebut this presumption. Learned Counsel for the accused Appellants has argued before me that there are strong circumstances which will lead to the probability that it was an accidental death. Firstly, it has been pointed out that no smell of kerosene oil was found at the time of the post-mortem, but, in my opinion, even if the doctor conducting the post-mortem has not noted about the availability of any smell of Kerosene from the dead body, it cannot be inferred from this circumstance that it was a case of accidental death and not the death by burning by others. According to the admitted case of the prosecution and defence, the incident of burning took place at about 12.00 a.m. in the night. Deceased was brought to the hospital at 4.00 a.m. on 24.5.1988 and she succumbed to the injuries at 5.34 a.m. on 24.5.1988. In my opinion, the whole body cannot be burnt from 12 in night upto 4.10 a.m. unless the catalytic has been used in burning. Human body takes a lot of time in complete burning. In this case, the incident of burning took place at 12.00 and she was so burnt upto 4.10 a.m. and she succumbed to injuries at 5.34 a.m. It is not possible without any use of catalytic in burning. It can be either any kerosene or any kerosene like item. Learned Counsel for the accused Appellants has further referred that the deceased was brought to the hospital by the accused Appellant. It is not very material because there is nothing convincing to conclude that these accused made an attempt to extinguish fire in the body of the deceased and they allowed her to burn during the period she remained in the house of in-laws. She was taken to the hospital when there was no hope of her survival. There is no explanation for this delay in bringing the deceased to the hospital just after burning. In the last, I find that site plan of the spot was prepared on 24.5.1988 which is Exhibit Ka-8. The place of incident has been shown by letter A in the site plan. It is the courtyard. The Investigating Officer did not find any piece of burnt cloth, etc. either in the kitchen or the courtyard. So the possibility of incident being taken place inside the kitchen is not supported by the site plan prepared by the Investigating Officer. Investigating Officer has shown the situation of kitchen by letter R in the site plan. He has noted that stove was found intact in the kitchen and a ''patili'' was kept on the stove which contains cooked dal and there are two match boxes lying nearby the stove. The condition of the stove inside the kitchen rules out the possibility of the accident inside the kitchen at the time of heating the cooked food and this situation of the kitchen does not inspire confidence in holding that it was a case of accident inside the kitchen at the time of heating the cooked food for the husband.

In view of the above, I am of the opinion that the reasoning given by the learned Sessions Judge, in the impugned judgment and order are consistent with the material available on record of the lower court. I am also of the opinion that the learned Sessions Judge has rightly held the accused guilty under Sections 304B and 498A of Indian Penal Code.

In view of the above, the appeal has no force. The appeal is dismissed. The judgment and order dated 30.8.1990, passed by the Sessions Trial No. 186 of 1988, State v. Lal Bahadur Singh and Ors. is hereby confirmed.

Let a copy of this judgment be sent to the C.J.M. concerned for compliance at once.