Naresh Yadav & Anr. vs The State Of Bihar

Ravi Ranjan, J.

1.Heard Mr. Krishna Prasad Singh learned counsel for the appellants, Ms. Prakritita Sharma learned Amicus Curiae for the appellants and Mr.

A.K. Sinha learned APP for the State.

2.This appeal has been preferred against the judgment and order of conviction dated 30.08.2012 and order of sentence dated 05.09.2012 passed

by Adhoc Additional Sessions Judge-IV, Darbhanga in Sessions Trial No. 449 of 2010 arising out of Kamtaul P.S. Case no. 94 of 2008,

whereby the learned trial court convicted the accused Naresh Yadav and Bechani Devi for the offence punishable under Section 304(B) of the

Indian Penal Code and sentenced them to undergo rigorous imprisonment for life under the aforesaid Section.

�3.The factual matrix of the case is that Kamtaul P.S. Case no. 94 of 2008 was instituted under Section 304(B)/34 of the Indian Penal Code

against accused Naresh Yadav and Bechani Devi on the basis of written report of Gopal Kant Yadav S/o Late Nathuni Yadav dated 13.08.2008

with the allegation, in succinct that the informant performed marriage of his daughter namely, Ratna Devi with Naresh Yadav four years back. The

couple had been blessed with a son namely, Vipin Kumar aged about one year. On 13.08.2008 at around 9:00 AM, his grandson Ranjan Kumar

informed him about some mishappening with Ratna Devi in her marital house. On the said information, he rushed to the marital house of his

daughter and found his son-in-law, Naresh Yadav and his mother Bechani Devi absconding and his grandson Vipin Kumar missing. On making

search of his daughter, he found his dead body lying on the cot in the eastern room of the house bearing ligature mark on her neck and her nose

bleeding. Further allegation is that his daughter had arrived at her marital house ten days back. His son-in-law and mother-in-law of the deceased

had demanded she-buffalo and palang from him. He learnt that his son-in-law and mother-in-law of the deceased had strangled his daughter to

death due to not coughing up their demand.

4.The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against the accused namely,

Naresh Yadav and Bechani Devi under Section 304(B)/34 of the Indian Penal Code showing them absconding.

5.On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the

aforesaid accused persons and committed the case to the court of sessions and after commitment and on transfer finally the case came in seisin of

the Adhoc Additional Sessions Judge-IV, Darbhanga for trial.

6.The aforesaid accused persons put their appearance in the case and charge against them was framed under Section 304(B)/34 of the Indian

Penal Code. Charge was read over and explained to them to which they pleaded not guilty and claimed to be tried.

7.To substantiate its case, in ocular evidence, the prosecution has examined altogether nine prosecution witnesses namely, Sanjay Kumar Yadav as

PW-1, Sita Ram Yadav as PW-2, Manoj Kumar Sah as PW-3, Urmila Devi as PW-4, Ram Naresh Yadav as PW-5, Bimal Devi as PW-6,

informant Gopal Kant Yadav as PW-7, I.O. Md. Abdul Lais Khan as PW-8 and Dr. Vijay Pratap Singh, who conducted autopsy of the cadaver

of the deceased as PW-9. The prosecution has also filed and proved some documents by way of documentary evidence.

8.The statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete

denial of the occurrence claiming themselves to be innocent. The accused persons have neither adduced any ocular nor documentary evidence in

buttress of their case.

9.After hearing the parties and perusing the record, the learned trial court passed the impugned judgment and order of conviction and sentence as

detailed in the earlier paragraph.

10.Being aggrieved and dissatisfied with the aforesaid judgment and order of conviction and sentence, the convicts have preferred the present

Criminal Appeal.

11.The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellants

beyond all reasonable doubts or not.

12.It is submitted by learned counsel for the appellants and learned amicus curiae that the informant neither in his fardbeyan nor in his testimony has

taken the case of subjecting the deceased to torture over demand of she-buffalo and palang by the appellants and also subjecting her to cruelty and

torture over the said demand soon before her death by the appellants. Thus, the prosecution has utterly and miserably failed to substantiate

subjecting the deceased to torture over demand of dowry and also subjecting her to cruelty and torture over the said demand soon before her

death by the appellants. The aforesaid two ingredients happen to be sine qua non for holding conviction under Section 304(B) of the Indian Penal

Code and as the prosecution has failed to substantiate the aforesaid two essential ingredients of dowry death, no conviction of the appellants can

be made for dowry death. It is further submitted that so far as the demand of dowry by the appellants is concerned, the informant in his testimony

has stated that no demand of aforesaid dowry had been made by the appellants from him rather his daughter (deceased) had divulged him about

the same. While in quite contradiction to the aforesaid statement of the informant, his wife (PW-6) has stated that the appellants had made the

aforesaid dowry demand from them. It is further submitted that though the witnesses have stated about making demand of dowry by the appellants,

but they have not stated about any date, time and period of the aforesaid demand. Thus, the demand of dowry by the appellants from the

prosecution party also does not stand established by the prosecution. It is further submitted that as the prosecution has failed to substantiate the

aforesaid two ingredients of Section 304(B) I.P.C. i.e. subjecting the deceased to cruelty over dowry demand and subjecting her to cruelty over

the aforesaid dowry demand soon before her death by the appellants, no presumption can be made under Section 113-B of the Indian Evidence

Act about commission of dowry death of the deceased by the appellants. Thus, the prosecution has utterly and miserably failed to substantiate the

prosecution case by adducing trustworthy, consistent and reliable evidence. Hence, the impugned judgment and order of conviction and sentence

passed against the appellants by the learned trial court is liable to be set aside and the appellants are entitled to be acquitted.

13.On the other hand, learned APP advocating the correctness and validity of the impugned judgment and order of conviction and sentence,

submitted that the informant has fully supported the prosecution case and other material witnesses examined by the prosecution, have also

corroborated the prosecution case, and the ocular evidence also stand corroborated by the medical evidence and after correctly appreciating the

facts and material available on record, the learned trial court has rightly passed the impugned judgment and order of conviction and sentence,

which is liable to be upheld and this appeal is shorn of merit and is liable to be dismissed.

14.In order to seek conviction under Section 304(B) I.P.C. against a person for the offence of dowry death, the prosecution is obliged to prove

that (a) the death of woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances (b) such death

should have occurred within seven years of her marriage (c) the deceased was subjected to cruelty or harassment by her husband or by any

relative of her husband (d) such cruelty or harassment should be for or in connection with demand of dowry (e) to such cruelty or harassment the

deceased should have been subjected to soon before her death. When the above ingredients are fulfilled, the husband or his relative, who

subjected her to such cruelty or harassment over dowry demand can be presumed to be guilty of offence under Section 304(B) I.P.C. While as

per Section 113-B of the Evidence Act, when the question is whether a person has committed 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 dowry death. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B

I.P.C. shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment over dowry

demand. Presumption under Section 113-B would be operative only if it is shown that soon before death the deceased was subjected to cruelty by

her husband or any relative for or in connection with demand of dowry.

15.Regarding the aforesaid ingredients i.e. death of woman was caused by burns or bodily injury or had occurred otherwise than under normal

circumstances and such death has occurred within seven years of her marriage. It is the admitted case of the parties that death of deceased (Ratna

Devi) had occurred four years back of her marriage in her marital house. As per prosecution case, on getting information about some mishappening

with his daughter, when the informant and others arrived at the marital house of his daughter, he found the dead body of his daughter lying on the

cot in the eastern room of the house bearing ligature mark on her neck and her nose bleeding.

16.The informant (PW-7) and other witnesses in their respective testimonies have corroborated the aforesaid case of the prosecution. It is claimed

by the informant that the accused persons have strangled to death his daughter over dowry demand. The inquest report (Ext-5) of the deceased

indicates that the police has found ligature mark around neck of the deceased and her nose bleeding. The doctor has also found ligature mark on

the neck of the deceased and has opined the cause of death as asphyxia as a result of ligature. Though, the defence has taken the case that Ratna

Devi always remained seek and has died due to ailment by giving suggestion to the informant and PW-1, PW-4, PW-5 and PW-6, which has

been denied by the said witnesses. The defence has not adduced any ocular or documentary evidence in substantiation of its aforesaid case and it

is settled law that mere suggestion does not take the shape of evidence. In the aforesaid facts and circumstances of the case, I find and hold that

Ratna Devi has died in her marital house due to strangulation within seven years of her marriage.

17.So far as the demand of dowry and tormenting the deceased by the appellants for the dowry and that too soon before her death is concerned,

as per prosecution case, the appellants had demanded she-buffalo and palang from the informant. There is no case of prosecution in the written

report that the appellants used to pester the deceased over the said demand and also tormented her over the said demand soon before her death.

18.From perusal of testimony of the informant (PW-7) it appears that in his examination-in-chief, he has stated that husband and mother-in-law of

his daughter namely, Ratna Devi used to make demand of she-buffalo and palang and their behavior towards Ratna Devi was not good. But, in the

said examination-in-chief, he has not even whispered about subjecting the deceased (Ratna Devi) to cruelty over the said dowry demand by the

appellants. He has also not whispered that appellants subjected the deceased to torture over the said demand soon before her death. Moreover, in

paragraph-5 of his cross-examination, he has stated that the appellant (Naresh Yadav) and others had not made any demand of dowry at the time

of marriage of Ratna Devi rather it was an ideal marriage. More so, as per prosecution case, as adumbrated in the written report, the appellants

had demanded she-buffalo and palang from the informant, but informant in paragraph 5 of his cross-examination has stated that Ratna Devi herself

had divulged him, for the first time, that her husband and mother-in-law used to make demand of she-buffalo and palang from her. He has also

failed to disclose the date of divulgence of the aforesaid fact to him by deceased (Ratna Devi). In the said cross-examination, he has not stated

about making demand of the aforesaid dowry by the appellants directly from him as per the case of prosecution as stated in his written report.

Though, the informant has not stated about making any demand of dowry by the appellants at the time of marriage, but PW-6 (Bimal Devi) who

happens to be wife of the informant and mother of the deceased has stated in paragraph 3 of her cross-examination that the appellants had

demanded she-buffalo and palang even at the time of marriage. In quite contradiction to the statement of the informant (PW-7), PW-6 (Bimal

Devi) has stated in paragraph 2 of her cross-examination that the appellants used to make demand of she-buffalo and palang, besides her daughter

from them as well. PW-6 (Bimal Devi), though, has stated in her examination-in-chief that the appellants used to torment Ratna Devi for the

aforesaid demand of dowry contrary to the statement given by the informant in his written report and in his examination-in-chief, but she has not

divulged the date, time and period of pestering Ratna Devi by the appellants. She has also not stated about subjecting the deceased to cruelty over

the said dowry demand by the appellants soon before her death. Though, PW-1 (Sanjay Kumar Yadav) has stated in his examination-in-chief that

in laws of Ratna Devi always used to harass her over dowry demand of she-buffalo and palang. But, in paragraph-2 of his cross-examination, he

has stated that no demand of dowry was made before him rather father of Ratna Devi (informant) used to divulge him about making of the

aforesaid demand by the appellants. But, the informant has not corroborated the factum of divulgence of the aforesaid aspects of the case to PW-

Hence, for want of corroboration, the aforesaid statement of PW-1 (Sanjay Kumar Yadav) who happens to be hearsay witness of the case is

not admissible in the evidence. Said witness has also not divulged the date, time and period of pestering the deceased (Ratna Devi) by the

appellants and subjecting the deceased to cruelty over the said demand soon before her death.

19.PW-2 (Sita Ram Yadav) who happens to be nephew of the informant though has stated in his examination-in-chief that his cousin Ratna Devi

used to divulge him that Naresh Yadav and his mother used to make demand of she-buffalo and palang and subjected her to torture over the said

demand and used to extend threatening of dire consequences to her, but in his cross-examination, he has stated that no demand of dowry was

made before him. Said witness has also not divulged any time, date and period of making any demand by the appellants and subjecting the

deceased to cruelty over the said demand and also tormenting her soon before her death.

20.PW-4 (Urmila Devi) who happens to be aunt of the deceased has stated in her examination-in-chief that Naresh Yadav and Bechani Devi used

to make demand of she-buffalo and palang in dowry from the very beginning and subject Ratna Devi to torture. But, no demand of dowry was

ever made by the appellants before her as in paragraph-3 of her cross-examination, she has stated that Ratna Devi used to divulge her about

making of the aforesaid demand of dowry by the appellants. Said witness has also not stated about date, period and time of making the aforesaid

demand of dowry and subjecting the deceased to cruelty over the said demand by the appellants. She has also not divulged about subjecting the

deceased to cruelty over the aforesaid dowry demand by the appellants soon before her death. Likewise, PW-5 (Ram Naresh Yadav) who

happens to be cousin of the deceased (Ratna Devi) has stated in his examination-in-chief that husband and in-laws of Ratna Devi always used to

torment her over the demand of she-buffalo and palang, but in paragraph-2 of his cross-examination, he has vented his ignorance about making

demand of dowry by the appellants after marriage. In paragraph 4 of his cross-examination, he has stated that the appellants had never made any

demand before him. Then the question arises, as to once the demand of dowry by the appellants was not made before him, then how he came to

know about making of the aforesaid demand by the appellants? The aforesaid question remains unanswered. The said witness has also not stated

about the date, time and period of making the demand of dowry and tormenting the deceased by the appellants. He has also not divulged about

subjecting the deceased to cruelty over the aforesaid dowry demand by the appellants soon before her death.

21.Thus, from perusal of prosecution case, testimony of the aforesaid witnesses and discussion made by me hereinabove, I find and hold that the

prosecution has utterly and miserably failed to substantiate that there was any dowry demand by the appellants and deceased was subjected to

cruelty over the said demand and that too soon before her death by the appellants by adducing consistent, trustworthy, reliable and cogent

evidence. As the prosecution has miserably failed to prove the aforesaid important ingredients of Section 304(B) of IPC, burden does not stand

shifted on the shoulder of the appellants to prove that they have not caused dowry death of the deceased.

22.Hon�ble Apex� court� in� Major� Singh� & Another Vs. State of Punjab reported in (2015) 5 Supreme Court Cases 201 has

been pleased to rule that when there is no evidence as to demand of dowry or cruelty and that deceased was subjected to dowry harassment

�soon before her death� by the appellant-accused parents-in-law conduct of father and brother of deceased, not natural, the conviction of the

appellant under Section 304-B cannot be sustained and is liable to be set aside. It has further been pleased to rule that to attract conviction under

Section 304-B I.P.C. prosecution should adduce evidence to show that �soon before her death�, the victim was subjected to cruelty or

harassment. There must always be a proximate and live link between effects of cruelty based on dowry demand and death concerned.

23.Hon�ble Apex Court in Baijnath & Ors. Vs. State of Madhya Pradesh (2017) 1 Supreme Court Case 101 has been pleased to rule that

mere factum of unnatural death in matrimonial home within seven years of marriage not sufficient to convict accused under Sections 304-B and

498-A I.P.C. Only when prosecution proves beyond doubt that deceased was subjected to cruelty/harassment in connection with dowry demand

soon before her death, presumption under Section 113-B can be invoked. Section 113-B of the Act enjoins a statutory presumption as to dowry

death. 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. A conjoint reading of these three provisions, thus predicates 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.

24.In the aforesaid facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to bring home the

charge levelled against the appellants beyond all reasonable doubts by adducing convincing, cogent, consistent and worth credence ocular and

documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by learned trial court is set aside and the

appellants are acquitted of the charge levelled against them. As the appellant no. 1 (Naresh Yadav) is in custody, he is directed to be released

forthwith from the custody, if not wanted in any other case. While the appellant no. 2 (Bechani Devi) is on bail, she is discharged from the liability

of the bail bonds. Accordingly, this Criminal Appeal is allowed.

25.Let a copy of the first and last page of this judgment be handed over to the learned amicus curiae, Ms. Prakritita Sharma, and learned amicus

curiae be paid prescribed fee by the Patna High Court Legal Services Committee.