Naresh Sao vs State Of Jharkhand

Shree Chandrashekhar, J

The entire family members of the appellant were named as accused by the informant in his written complaint which was filed on 10.12.1996 in the

court of the Chief Judicial Magistrate, Daltonganj, district-Palamau. The complaint was registered as Complaint Case No.519 of 1996 and sent to

police for investigation under section 156 (3) of the Code of Criminal Procedure. The accused persons, namely, Tulsi Sao, Naresh Sao, Sursh Sao,

Sunil Sao, Janeshwar Sao, Tetri Devi and Lalita Devi have faced the trial on the charge under section 304-B of the Indian Penal Code, section 498-A

of the Indian Penal Code and under section 3/4 of the Dowry Prohibition Act, 1961.

In Sessions Trial No.46 of 1998, the appellant, namely, Naresh Sao has been convicted and sentenced to undergo imprisonment for life under

section 304-B of the Indian Penal Code, however, no separate sentence under section 498-A and section 201 of the Indian Penal Code and section 3/4

of the Dowry Prohibition Act, 1961 has been passed.

The informant of this case is father of Bimla Devi, the victim lady. In his written complaint , the informant has stated that marriage of his daughter

was solemnized with Naresh Sao in May, 1995 and at the time of marriage he has given several household articles besides Rs.15,000/- in cash. About

six months after her marriage, his daughter was harassed by her husband and his family members. The informant has made allegation of demand of

Rs.25,000/- by his son-in-law from his daughter for investing in the business and he used to threaten her saying that he would contract a second

marriage. The informant has further alleged that when he expressed his inability to fulfill demand of dowry by his son-in-law he asked him to transfer

the landed property to him. On 05.12.1996, he had gone to his daughter's marital house for Bidai as time for delivery of a child was nearing. In the

night at about 10:00 p.m, he heard cries of his daughter and saw that the accused persons were strangulating his daughter with a rope and when he

tried to intervene they threatened him to kill him also. The informant has further alleged that the accused persons killed his daughter by strangulation

and when he reported the matter to the police next day no action was taken by the police. Compelled, he has filed a complaint case against the

accused persons.

During the trial the prosecution has examined 8 witnesses; the informant is P.W 2.

To prove demand of dowry, the prosecution has examined P.W 2 and P.W 7, who is mother of the victim lady.

The essential ingredients for constituting an offence under section 304 B are; (i) death within 7 years of marriage, (ii) death of a woman otherwise

than under normal circumstance, and (iii) soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of

the husband for or in connection with demand of dowry. By Amendment Act of 1986, section 304-B of the Indian Penal Code has been incorporated

in the Indian Penal Code. A corresponding provision as 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 “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 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€​

The informant who has been examined in the court as P.W 2 has stated that his daughter whenever came to his house informed him that her

husband and his family members were demanding Rs.25,000/- for business. The mother of the victim lady who has been examined in the court as

P.W 7 has also stated that about six months after the marriage the husband and his family members were demanding Rs.50,000/- from her daughter.

She has further stated that when she had gone to meet her daughter she would tell her about harassment by her husband and in-laws and whenever

she tried to reason with her son-in-law he told her that either you give Rs.25,000/- for business or take away your daughter.

Miss Amrita Banerjee, the learned Amicus has, however, referred to statement of the informant in paragraph nos.22, 24 and 26 of his cross-

examination to contend that the prosecution has failed to establish that soon before her death Bimla Devi was subjected to harassment and torture by

her husband in connection to demand of dowry. The expression soon before her death is not capable of any precise definition; no straight-jacket

formula can be evolved for arriving at a conclusion whether a woman was subjected to harassment and torture in connection to demand of dowry. It

depends on the facts of the case. In “Kamesh Panjiyar v. State of Bihar†reported in (2005) 2 SCC 388, the 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€​

P.W 2 and P.W 7 both have spoken about harassment and torture of their daughter at the hands of the appellant in connection to demand of

Rs.25,000/-. Both have deposed in the court that about six months after the marriage the appellant has started demanding Rs.25,000/- for business and

they have also deposed that whenever they met their daughter she has informed them about her harassment in connection to demand of Rs.25,000/-.

A statement by the informant in his cross-examination that in the last six months no incident had happened cannot be construed to mean as if there

was no demand by the appellant. From the aforesaid evidence, it cannot be inferred that harassment of Bimla Devi for non-fulfillment of demand of

Rs.25,000/- by the appellant was in a remote past which cannot be connected to her dowry death. The learned Additional Sessions Judge has

recorded a finding that harassment of Bimla Devi in connection to demand of Rs.25,000/-has persisted till she was finally done to death. In our opinion,

the prosecution has prima-facie shown that soon before her death Bimla Devi was subjected to harassment and torture at the hands of the appellant in

connection to demand of Rs.25,000/-; may be there is a little variation on the amount of demand. And, the death of Bimla Devi has occurred otherwise

than normal circumstances is proved from the medical evidence.

P.W 3-Dr. Sita Ram Chaudhry, who has conducted the post-mortem examination, has observed one ligature mark of the size of ½â€,

horizontally and continuous round the neck, below the thyroid with one knot on the right side of back of neck with abrasion and ecchymoses round

about the edges of the ligature mark.

In medical jurisprudence certain distinctive features of homicidal death by ligature have been discussed.

In the Textbook of Medical Jurisprudence and Toxicology by Modi, 26th Edition, it is stated that in homicidal strangulation ligature mark would be

horizontal or transverse, continuous, round the neck and low down the neck below the thyroid. It is also common that in a case of homicidal

strangulation abrasions and ecchymoses round the ligature mark are found and carotid arteries' internal coats are raptured, larynx trachea and hyoid

bone are fractured. Parikh's Textbook of Medical Jurisprudence Forensic Medicine and Toxicology, Sixth Edition, also refers to ligature mark which

usually would encircle neck horizontally below thyroid cartilage. It says that abrasions and bruises around the ligature mark are common in a case of

homicidal death by strangulation. According to Parikh, similar hypothesis such as fracture of hyoid bone, laryngeal cartilages, tracheal rings and carotid

arteries are common.

The aforesaid observations of P.W 3 would indicate that Bimla Devi has suffered a homicidal death by strangulation by a rope. Though, the doctor

has not rendered a definite opinion on homicidal death, he has stated during his cross-examination that ligature mark found on Bimla Devi was not

possible by hanging. He has further stated that the ligature found around the neck of Bimla Devi is possible by rope, cloth or cotton band etc. In his

fard-beyan, the informant has stated that he has seen the accused persons strangulating Bimla Devi by a rope.

The medical evidence, thus, corroborates the ocular evidence on cause of death of Bimla Devi.

Therefore, the prosecution has prima-facie established essential ingredients for constituting an offence under section 304-B of the Indian Penal

Code and while so, a presumption of dowry death has to be raised against the appellant. In his examination under section 313 of the Code of Criminal

Procedure, the appellant has remained silent. He has not offered any explanation on the cause of death of his wife. When a woman is found dead in

her marital home and, that too, in suspicious circumstances, her husband is required to offer his explanation to the incriminating circumstances. An

evasive reply by an accused or his failure to offer an explanation to the incriminating circumstances in his examination under section 313 of the Code

of Criminal Procedure may not be the sole ground to record his conviction, but then, his failure to offer an explanation how his wife has died would

provide an additional link in the chain of circumstances [refer, “State of Maharashtra Vs. Sureshâ€​ reported in (2000) 1 SCC 471].

Miss Amrita Banerjee, the learned Amicus has tried to contend that the informant is not an eye-witness.

This contention is based on statement of the informant in paragraph no. 28 of his cross-examination. However, on a reading of the whole of

testimony of the informant we observed that stand of the informant as recorded in paragraph no.28 has to be read along with paragraph no.23 of his

cross-examination, as also with reference to his examination-in-chief. He is the father who was threatened by the accused persons with dire

consequences. He says that he made complain to the police next day, however, no step was taken by the police and, therefore, compelled, he has filed

a complaint case. During the investigation, the police has recovered dead body of Bimla Devi which was already buried by the accused persons and

the doctor has ruled out suicidal death of Bimla Devi. In view of the aforesaid consistent and cogent evidences led by the prosecution against the

appellant, minor inconsistency in testimony of the informant and his wife would not create any doubt on complicity of the appellant in the crime. It is, in

fact, a well-accepted proposition in criminal jurisprudence that in every case there may be some inconsistency, exaggeration, embellishment etc. in

testimony of the prosecution witnesses, but on that count evidence of the prosecution witnesses cannot be rejected altogether. In “A. Shankar Vs.

State of Karnatakaâ€​ reported in (2011) 6 SCC 279, the Hon'ble Supreme Court has held as under:

“22. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation,

namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the

omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material

improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies,

embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on

which the evidence can be rejected in its entirety.â€​.

The above being the factual scenario, we hold that the prosecution has established the charge under sections 498-A, 304-B and 201 of the Indian

Penal Code and under section 3/4 of the Dowry Prohibition Act, 1961.

Miss Amrita Banerjee, the learned Amicus has next contended that infliction of maximum punishment of imprisonment for life under section 304-B

of the Indian Penal Code upon the appellant is not proper.

In the order of sentence dated 22.08.2001, the learned Additional Sessions Judge has recorded the submission on behalf of the appellant that he is

a young man aged about 22 years and therefore maximum sentence prescribed under section 304-B of the Indian Penal Code may not be awarded to

him, however, the learned Additional Sessions Judge has simply observed that “ in the result, the convict is sentenced to undergo the imprisonment

for lifeâ€​.

Under section 304-B of the Indian Penal Code, the maximum punishment provided is R.I for life though the minimum sentence shall not be less

than seven years. The expression “but which may extend imprisonment for life†in sub-section 2 to section 304-B reflects intention of the

legislature that maximum punishment cannot be awarded as a matter of course. By now, it is well-settled that before sentence is inflicted upon an

accused the court is required to weigh aggravating vis-a-vis mitigating circumstances. The appellant when he was sentenced to maximum punishment

of R.I for life was aged about 22 years. This definitely is a circumstance leaning towards the appellant, however, the learned Additional Sessions

Judge has failed to discuss the mitigating circumstances which are reflected in the prosecution's evidence[refer,“ Amit Vs. State of Maharashtra

reported in (2003) 8 SCC 93].

In “Hem Chand Vs. State of Haryanaâ€​ reported in (1994) 6 SCC 727, the Supreme Court has observed as under:

“7. Now coming to the question of sentence, it can be seen that Section 304-B IPC lays down that:

“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.â€​

The point for consideration is whether the extreme punishment of imprisonment for life is warranted in the instant case. A reading of Section 304-B

IPC would show that when a question arises whether a person has committed the offence of dowry death of a woman what all that is necessary is it

should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such

person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has

caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the

deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if

the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113-B of the Evidence

Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death

caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection

with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304-B IPC also. It can therefore be seen that

irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death

provided the other requirements mentioned above are satisfied. In the instant case no doubt the prosecution has proved that the deceased died an

unnatural death namely due to strangulation, but there is no direct evidence connecting the accused. It is also important to note in this context that

there is no charge under Section 302 IPC. The trial court also noted that there were two sets of medical evidence on the file in respect of the death of

the deceased. Dr Usha Rani PW 6 and Dr Indu Lalit PW 7 gave one opinion. According to them no injury was found on the dead body and that the

same was highly decomposed. On the other hand, Dr Dalbir Singh PW 13 who also examined the dead body and gave his opinion, deposed that he

noticed some injuries at the time of re-post-mortem examination. Therefore at the most it can be said that the prosecution proved that it was an

unnatural death in which case also Section 304-B IPC would be attracted. But this aspect has certainly to be taken into consideration in balancing the

sentence to be awarded to the accused. As a matter of fact, the trial court only found that the death was unnatural and the aspect of cruelty has been

established and therefore the offences punishable under Sections 304-B and 201 IPC have been established. The High Court in a very short judgment

concluded that it was fully proved that the death of the deceased in her matrimonial home was a dowry death otherwise than in normal circumstances

as a result of cruelty meted out to her and therefore an offence under Section 304- B IPC was made out. Coming to the sentence the High Court

pointed out that the accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and

that bride- killing cases are on the increase and therefore a serious view has to be taken. As mentioned above, Section 304-B IPC only raises

presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme

punishment of imprisonment for life should be in rare cases and not in every case.â€​

On this issue, in “State of Punjab Vs. Manjit Singh and Ors.â€​ reported in AIR 2009 SC 2888, the Supreme Court has observed as under:

“12. With regard to the quantum of punishment to be awarded to persons found guilty of offences dealt with in the IPC, the Code confers a wide

discretion on the court in the matter of awarding appropriate punishment by prescribing the maximum punishment and in some cases both the

maximum as well as the minimum punishment for the offence. Though no general guidelines are laid down in the Code for the purpose of awarding

punishment, generally the judicial discretion of the court is guided by the principle that the punishment should be commensurate with the gravity of the

offence having regard to the aggravating and mitigating circumstances vis-a-vis an accused in each case. In such situation, the obligation of the court

in making the choice of death sentence for the person who is found guilty of murder becomes more onerous indeed.

In view of the aforesaid discussions, we are of the opinion that award of maximum punishment of R.I for life to the appellant was not proper and,

therefore, it is set-aside.

Accordingly, the order of sentence dated 22.08.2001 passed in Sessions Trial No.46 of 1998 is set-aside.

While upholding his conviction under section 304-B of the Indian Penal Code, the appellant is sentenced to R.I for ten years.

The learned A.P.P submits that the appellant has remained in custody for about nine years.

The court concerned shall prepare a modified conviction warrant in terms of this judgment.

In the result, Criminal Appeal (D.B) No.475 of 2001 is partly allowed.

We appreciate the assistance rendered by the learned Amicus, who has prepared meticulous notes and chart on the prosecution evidence.

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