Satyam Bhardwaj and Others vs The State of Bihar

Gopal Prasad, J.—1. Heard learned counsel for the appellants and the State.

As both the appeals arise out of the same judgment of conviction and order of sentence, they have been heard together and are being disposed of by this common judgment.

The appellants have been convicted under Section 304B/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years each and also to pay a fine of Rs. 10,000/-each and in default of payment of fine to undergo simple imprisonment for six months.

The prosecution case, as alleged in the fardbeyan of the informant Sunil Kumar Mishra, the father of the victim Simpi Kumari Mishra @ Soni Kumari recorded by the Assistant Sub-Inspector, M.M. Ram, Pirbahore Police Station Campus, P.M.C.H., Patna on 02.05.2011 at 3:30 P.M., is that the marriage of his daughter Simpi Kumari was performed according to Hindu rites and rituals with Satyam Bhardwaj on 21.06.2010. After marriage, the accused persons i.e. husband, father-in-law, mother-in-law and Dewar (brother-in-law) used to demand Rs. 5,00,000/- as dowry. It is further alleged that on 01.05.2011 at 3:00 P.M. all the accused persons in collusion set on fire his daughter and thereafter she was taken to Lahariya Sarai Hospital from where she was referred to P.M.C.H., Patna, where the Doctor on her examination declared her dead.

A written report has also been submitted on 03.05.2011 before the Officer-in-Charge, Nagar Police, Darbhanga by the informant Sunil Kumar Mishra in which it is alleged that his daughter Simpi Kumari was married with the appellant Satyam Bhardwaj on 21.06.2010. After marriage, the victim Simpi Kumari Mishra @ Soni Kumari, the daughter of the informant, went to her Sasural. She resided at her Sasural for about one and quarter months and thereafter she came to her Naihar (parent''s house). When she came to Naihara then she disclosed that her husband, mother-in-law, father-in-law and Dewar (brother-in-law) were demanding Rs. 5,00,000/- as dowry and they asked her to bring the said amount from her father otherwise she would be killed. It is further alleged that after lapse of two months, the accused Nishant Bhardwaj, Dewar of the victim, arrived at the house of the informant for Bidagari of the victim. The informant then asked Nishant Bhardwaj as to why such a huge amount was being demanded from his daughter. The informant also told the accused Nishant Bhardwaj that he had given all gifts/dowry as per his status and capability. Thereafter the accused Nishant Bhardwaj assured the informant that no such demand would be made in future. Thereafter Bidagri of the victim was performed. After Bidai, the victim again went to her Sasural. It is further alleged that just after 11 days on 02.05.2011, the informant was informed from husband of Ward Councilor of Mirzapur muhalla, namely, Aditya Nath Jha that his daughter had been burnt. Upon this information, the informant along with his son arrived at Darbhanga, Mirzapur where he came to know that his daughter had been burnt at 3:00 P.M. The informant also came to know that his daughter was taken to Hospital D.M.C.H. The informant went to D.M.C.H. where he came to know from the Doctor that the victim was referred to P.M.C.H., Patna. The informant thereafter arrived at P.M.C.H. where he found that his daughter Simpi Kumari Mishra @ Soni Kumari had died. The informant claimed that his daughter was killed by the appellants and one Sudhir Mishra (cousin father-in-law of the victim) due to non-fulfilment of demand of dowry. The accused Satyam Bhardwaj is the husband, accused Dhirendra Kumar Mishra is the father-in-law, accused Ranjana Devi is the mother-in-law and accused Nishant Bhardwa is the Dewar (brother-in-law) of the victim/deceased Simpi Kumari Mishra @ Soni Kumari.

The fardbeyan was recorded by the Assistant Sub-Inspector, M.M. Ram, Pirbahore Police Station Campus, P.M.C.H., Patna on 02.05.2011 at 3:30 P.M. which was forwarded to the Station House Officer, Nagar Police Station, Darbhanga, District Darbhanga for investigation in the territorial jurisdiction of the place of occurrence as well as on the written report of the informant, thereafter case was lodged under Section 304B/34 of the Indian Penal Code bearing Darbhanga P.S. Case No. 96 of 2011 and thereafter investigation proceeded.

During investigation, the Investigating Officer inspected the place of occurrence and gave detail of the place of occurrence in his examination-in-chief, recorded the statement of the witnesses, prepared inquest report of the deceased, sent the dead body for post-mortem and thereafter obtained the post-mortem report. The doctor examined the dead body of the victim on 02.05.2011 at 4:00 P.M. and opined that the cause of death is due to burning and its complications. Thereafter, the police after investigation submitted charge-sheet on which cognizance was taken and the case was committed to the Court of Session. After framing of charge, twelve witnesses were examined by the prosecution. The defence has also adduced five witnesses.

The witnesses were examined on behalf of the prosecution. P.W.1 Ashok Choudhary has stated in his evidence that incident took place about 4-5 months ago. This witness was examined on 04.04.2013. He further deposed that the deceased Simpi Mishra was his neighbour. At about 3:30 A.M. (in the morning) he heard Halla from the house of the accused Dhirendra Mishra. Simpi Mishra was the daughter-in-law of accused Dhirendra Mishra. On Halla this witness arrived at the house of accused Dhirendra Mishra. He saw the deceased Simpi Mishra, daughter-in-law of Dhirendra Mishra in burnt condition. The deceased Simpi Mishra was saying something. Simpi was treated at D.M.C.H. and thereafter Simpi Mishra had died in D.M.C.H. The witness has stated that his statement was recorded by the police. He identified the accused Dhirendra Mishra and Satyam Mishra in the Court. He was also cross-examined by the defence. In his cross-examination he has stated that he went to the house of the accused persons on the halla of the accused persons. The accused persons were raising halla "Bachao-Bachao". When he reached the house of the accused persons, the gate of the house was opened. The accused persons were trying to save the deceased by means of blanket. He also asked to the girl about the incident upon which she had stated that her father-in-law, mother-in-law and husband were innocent. The Dewar of the victim was not there. He further deposed that there was no any dispute in between victim and the Sasural people. He never heard about the demand of dowry and torture. He claimed to have seen the occurrence.

P.W. 2 Luxmi Devi deposed that she did not know about the occurrence and has been declared hostile by the prosecution.

P.W. 3 Binod Kumar Jha deposed in his evidence that his statement was recorded before the police. He was also cross-examined by the prosecution regarding the statement recorded by the Police only for the purpose of corroboration.

P.W. 4 Jatadhar Thakur has also been declared hostile by the prosecution. P.W.5 Ram Kumar Pathak deposed that he did not know about the incident. P.W.6 Rajesh Kumar Singh alias Raju stated in his cross-examination that he did not see the incident and has been declared hostile by the prosecution. P.W.7 Arun Kumar Jha has also been declared hostile by the prosecution.

P.W.8 Amit Kumar, the brother of the deceased Simpi, has supported the prosecution case. He has stated that his sister Simpi was married with accused Satyam Bhardwaj on 21.06.2010. After marriage, his sister went to her Sasural. After residing there for one month 7 days, she came at her Maike (Naihar) after Bidai. His sister used to say that Sasural people were demanding five lacs rupees as dowry. The accused Satyam Bhardwaj, Ranjana Devi, Dhirendra Mishra, Nishant Bhardwaj and Sudhir Mishra were demanding Rs. 5,00,000/-. This witness has stated that his sister told him that the Sasural people used to say that she would be killed. He further stated that Nishant came at his house for Bidai of his sister. This witness asked to Nishant why he was committing such type of act against his sister, upon which Nishant assured him that no such type of incident would take place. His sister further went to Sasural house with Nishant after Bidai. He further deposed that just after one month the Sasural people poured kerosene oil upon his sister. She sustained injuries. His sister further came at her Naihar (Maike). He further deposed that she further went to her Sasural after Bidai. This witness has stated that on 02.05.2011 his sister was killed by the Sasural people after setting her on fire. At the time of incident he was at his house. One Aditya Nath Jha, husband of the Ward Councilor informed his father that his daughter was killed by the Sasural people. Upon this information, this witness and his father arrived at the Sasural house of the victim where he came to know from the villagers that his sister was burnt. His sister was set on fire by the Sasural people and further she was taken to D.M.C.H. Upon this information, this witness came at D.M.C.H. where he came to know that his sister was referred to P.M.C.H. This witness further went to P.M.C.H., Patna where he saw the victim Simpi in dead condition. He also saw that the whole body of the victim was burnt. He further deposed that his father is informant of this case. His father gave written report to the Police Station. He also identified his writing and signature on the written report which has been marked as Ext. 1. He has exhibited his signature on written report marked as Ext. 1/1. He further deposed that the accused Satyam Bhardwaj, Nishant Bhardwaj, Dhirendra Mishra and Ranjana Devi were involved in killing his sister. He has supported the prosecution case in his examination-in-chief. He was cross-examined by the defence. In his cross-examination he has supported his version as stated in his examination-in-chief. In his cross-examination he has stated that he went to P.M.C.H. with his father. The fardbeyan of his father was also recorded at P.M.C.H. He has further stated in his cross-examination that after fardbeyan of his father he went to Town Police Station and submitted complaint petition. He was also cross-examined regarding the previous statement recorded by the Investigating Officer under Section 161 of the Cr.P.C. only for the purpose of contradiction. In his cross-examination, he denied that his sister herself committed suicide.

P.W.9 Sumit Kumar the brother of the deceased Simpi Kumari, has supported the prosecution case. He has also supported the case of the prosecution in his examination-in-chief. He has stated that his sister was married on 21.06.2010. After marriage his sister went to her Sasural. He has stated that his sister used to say that the Sasural people were demanding Rs. 5,00,000/-. He has also supported the version of the witness Amit Kumar P.W.8 in his examination-in-chief. He was also cross-examined by the defence.

P.W.10 Sunil Kumar Mishra, the informant of this case and father of the deceased Simpi. He deposed in his examination-in-chief that the marriage of his daughter was performed on 21.06.2010. He deposed that his daughter used to say her mother that she would be killed by the Sasural people due to non-fulfilment of Rs. 5,00,000/-. He deposed that his daughter sustained burn injuries on 02.05.2011 in the Sasural house and she died on 03.05.2011.

P.W.11 Sanjay Kumar Singh, the Investigation Officer of this case. P.W. 12 Arun Kumar Singh conducted the post-mortem over the dead body of the deceased. He deposed that ante mortem burn injuries were found over the body of the deceased. He deposed that the cause of death due to burn injuries and proved the post-mortem report which has been marked as Ext. 10.

The defence has also adduced five witnesses who are D.W.1 Raj Kumar Jha, D.W.2 Arvind Kumar Mishra, D.W.3 Shrawan Kumar Jha, D.W.4 Sanjay Kumar Mishra and D.W.5 Dinesh Thakur. The defence of the accused is that no demand was made by the husband Satyam Bhardwaj or his family members from Simpi Kumari Mishra @ Soni Kumari as she was short tampered and highly ambitious. She was not happy with the said marriage rather she was very shocked to know about the person with whom she was married that he was not the MBBS Doctor. As she was not informed about the actual state of affair that the person, with whom she was married, is an illiterate so she herself committed suicide. The witnesses have also deposed that at the time of occurrence when they reached then she disclosed that the Sasural people were innocent and they had nothing to do with the said burning as she herself committed suicide. The further defence of the accused persons is that even her husband Satyam Bhardwaj tried to set him on fire and in this regard his hand was also burnt.

The trial Court took into consideration the evidence of the witnesses and convicted the appellants on the ground that the marriage was solemnized on 21.06.2010, thereafter the victim went to her Sasural and sustained burn injury and P.Ws.8 and 9 have stated that his sister Simpi Kumari Mishra @ Soni Kumari used to say that Sasural people had demanded Rs. 5,00,000/- as dowry and further took into consideration the evidence of P.W.10 regarding his deposition that his daughter had been killed by Sasural people due to non-fulfilment of Rs. 5,00,000/- and since the Doctor had opined that the cause of death is due to burn injuries hence, held that 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 after her marriage she was subjected to cruelty or harassment by her husband or any relative of her husband for, in connection with, any demand for dowry, such death shall called "dowry death" and hence, hold that the prosecution has not been able to prove the charges beyond reasonable doubt.

Learned counsel for the appellants, however, challenged the judgment of conviction and order of sentence recorded by the trial Court on the ground that though there is evidence of demand of Rs. 5,00,000/-, but the evidence regarding subjecting cruelty is missing and it is submitted that soon before her death the victim was subjected to cruelty for non-fulfilment of the demand of dowry the ingredients for offence under Section 304B of the Indian Penal Code are not fulfilled and the conviction recorded by the trial Court is not sustainable. It is further submitted that the evidence regarding the subjecting cruelty for non-fulfilment of the demand of dowry is either missing or the prosecution has developed the story of dowry demand and subjecting cruelty for non-fulfilment of the dowry demand from stage to stage. It is also submitted that there is contradiction in the evidence of the witnesses on the point of subjecting cruelty and hence, contended that the judgment of conviction and order of sentence recorded by the trial Court are not sustainable.

Learned counsel for the State, however, submits that the prosecution has well proved the ingredients for offence under Section 304B of the Indian Penal Code. It is submitted that the death of the victim has been established by burn injury and in suspicious circumstance and the marriage solemnized within seven years is well admitted. He further submits that the demand of Rs. 5,00,000/- (five lacs) as dowry has also been alleged and further in view of the evidence of P.Ws.7 and 8 as well as the evidence of P.W.10 the brother and the father of the victim, the accused persons were threatening the deceased to kill her and hence, it amounts to threatening to kill for non-fulfilment of dowry demand and it also amounts to mental cruelty permeated on the person and hence, the prosecution has been able to prove the ingredients for offence under Section 304B of the Indian Penal Code enabling to record a conviction taking presumption under Section 113(B) of the Evidence Act.

Having regard to the respective submissions, I proceed to consider the evidence of the witnesses in the light of the submissions made above. However, as per the prosecution case as alleged in the First Information Report by the informant, the first version of the prosecution in the fardbeyan of the informant recorded by the Assistant Sub-Inspector, Pirbahor Police Station Campus, P.M.C.H., Patna is to the effect that the marriage of the victim was solemnized with Satyam Bhardwaj and after the marriage there was demand of Rs. 5,00,000/- and further on 01.05.2011 at about 3:00 P.M. all the accused persons burnt the victim to death. However, the fardbeyan, recorded on 02.05.2011 at about 3:30 P.M., does not mention or whisper anything about subjecting cruelty. However, the second version of the informant is the written report recorded on 03.05.2011, where it has been mentioned in some detail that after the marriage of the victim on 21.06.2010 his daughter went to Sasural and remained there for one and quarter months and thereafter came to Naihar then she disclosed about the demand of Rs. 5,00,000/- and the in-laws were saying that if she would not come with the money, she would be killed. Thereafter she remained at Naihar for two months thereafter taken by Nishant Bhardwaj the Dewar of the victim and after 11 days he got information that his daughter has been done to death. However, the prosecution developed the prosecution case at the stage when his first statement was recorded on 02.05.2011 where there is no mention regarding subjecting cruelty and it has been developed from the stage of the fardbeyan recorded on 02.05.2011 to the date of writing to the written report that his daughter came Naihara after one and quarter months and disclosed about the demand of Rs. 5,00,000/-and she was threatened that if the money would not be paid or she did not come with the money she would be killed. This part of the earlier version in the fardbeyan is missing, which was recorded by the Officer-in-Charge of Police Officer of Pirbahore. However, out of the twelve witnesses examined in the case, P.Ws.2 to 7 have already turned hostile as the prosecution has declared them hostile and attention has been drawn to his earlier statement before the police that they have stated before the police that at the time of occurrence when they rushed to the house of the victim and were asking the inmates of the house to open the door then the accused persons were saying that the key of the house was missing and subsequently school gate was opened. However, it is well settled that the statement made before the Police under Section 161 Cr.P.C. cannot be used for any purpose other than contradiction and hence, drawn the attention that the evidence of P.Ws.2 to 7 are apparently of no significance as those statements made before the police were denied to have been stated by a witness. It cannot be used as evidence against the accused, but can only be used to discredit a witness and hence, the evidence of P.Ws.2 to 7 are of no use for prosecution. However, P.W.1 deposed that he saw Simpi Kumari Mishra @ Soni Kumari the victim in burnt state and she was speaking something at that time. However, in his cross-examination he has stated that the accused persons tried to set off the fire and when he asked the girl about the occurrence then she disclosed that the father-in-law, mother-in-law and her husband were innocent and then the victim was taken to hospital. P.Ws. 8, 9, 10 are the most important witnesses on the point of demand and subjecting cruelty. However, P.W. 10 is the informant and the father of the victim also. This witness stated in his evidence that his daughter used to come to Naihar and she used to have a talk with him. He has further been stated that the Sasural people used to demand Rs. 5,00,000/-and said that if the said demand was not fulfilled then they would kill her and the said information was being given to him by others. He has further stated that she even stated her on telephone that if money would not be paid then she would be killed. However, his evidence is in two parts about learning from the wife and the second part is about the fact which he learnt on telephone by the victim. However, the mother of the victim has not been examined as a witness and hence, the evidence of the mother of the victim is hit by hearsay being not admissible in evidence since the mother of the victim has not been examined as a witness and hence, this part of the evidence is not available or worthy of credence or reliable nor even to be admitted in evidence. So far the evidence regarding the fact that the daughter used to say on telephone is the evidence introduced for the first time as neither in the fardbeyan recorded on the basis of his statement nor in the written report on the basis of the First Information Report drawn, he has ever mentioned about his learning of the fact from his daughter on telephone. There is no eye-witness to the occurrence. Since the mother of the victim has not examined, this part of the evidence is not admissible on the question of the demand and subjecting cruelty. However, the evidence of P.W.8 is that marriage solemnized on 21.06.2010 and after one and quarter months his sister came to his house. He has deposed that his sister used to disclose that the Sasural people used to demand Rs. 5,00,000/- and also disclosed the names of the persons who demanded and hence, to say that if she did not bring the money she would be killed. He has further stated that after two months he got Bidai of his sister and after going to Sasural the Sasural people poured kerosene oil on her body and set on fire to her body. However, the attention of this witness has been drawn in paragraph 6 to record a contradiction and his attention drawn to the statement made in the Court in his examination in chief that he has stated so before the police in his statement. However, an attempt has been made to take a contradiction and to draw the attention of the Investigating Officer. It has not been proved as to what this witness stated before the Investigating Officer in his statement under Section 161 Cr.P.C. hence, the statement under Section 161 Cr.P.C. has not been proved by the Investigating Officer and attention of the Investigating Officer has only been brought to the evidence of this witness in his cross-examination that he has not stated so before him as he has stated in chief. However, the statement under Section 161 Cr.P.C. has not been brought on record in the evidence of the Investigating Officer. However, it would be a futile effort of recording a contradiction. It is well settled that if a procedure provided then for doing an act then the act is to be done in the way only the procedure is provided.

However, the procedure for recording contradiction has been provided under Section 145 of the Indian Evidence Act, 1872 which provides that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and the relevant to matters, in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must be drawn, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Hence, what is required as per Section 145 of the Indian Evidence Act for recording a contradiction is to bring attention of the witnesses on the statement made under Section 161 of the Cr.P.C. by the Police. However, to record the attention of this witness has not been brought with regard to his statement recorded under Section 161 of the Cr.P.C. nor those facts or the statements recorded by the Police have ever been proved by the Investigating Officer. It appears that the learned Sessions Judge while recording the contradiction has neither acted properly to record the contradiction nor the prosecution drew the attention of the witnesses on the statements made by the witnesses under Section 161 of the Cr.P.C. and hence, it amounts to a procedural laches or a procedural lapse. However, the prosecution case in the First Information Report itself shows that the occurrence took place on 01.05.2011, the victim went to Sasural and lived for one and quarter months and on return she disclosed that there was demand of Rs. 5,00,000/- as dowry and threat to kill for non-fulfilment of demand. However, subsequent events regarding the subsequent visits and throwing of kerosene oil is apparently development of the prosecution case which is not the prosecution case in the fardbeyan. P.W.9 is brother of the victim. He has also not mentioned as stated by P.W.8. He has further been stated that his sister came and used to say about the demand of Rs. 5,00,000/- and accused persons. However, the evidence itself suggests at the outset that the prosecution case was only regarding the demand of Rs. 5,00,000/- but no case of cruelty. However, the allegation of subjecting cruelty is found missing in the fardbeyan recorded at the out set which neither mentions that the victim came to Sasural nor mention about the cruelty, but has mentioned only about demand.

However, on the contrary, the informant in his evidence has stated that his daughter came to his house and disclosed that her husband is not a doctor but a naturopath and has stated that when his daughter used to go to her Sasural then she used to become disappointed for the reason that her husband was not a medical graduate. Hence, going into the question of entire evidence, it is true that the marriage was solemnized within seven years, there was allegation of demand of Rs. 5,00,000/- and the victim was done to death in suspicious circumstance. However, the evidence regarding the fact that the victim was subjected to cruelty soon before the death is missing. The evidence of the informant that he learnt on telephone and the evidences of P.Ws.7 and 8 are concerned about the sprinkling of kerosene oil and setting on fire does not inspire confidence as their evidences suffer from the vice of unreliable, cogent and unimpeachable evidence and is a development in the prosecution case, hence, does not inspire confidence to be relied upon.

Hence, going into the question of the ingredients of the offence under Section 304B of the Indian Penal Code, it appears that regarding the ingredients soon before the death the victim was subjected to cruelty for non-fulfilment of the demand, there is no cogent, reliable and unimpeachable evidence to be relied upon. The ingredient for offence under Section 304B of the Indian Penal Code has not been established. Hence, it is held that when ingredients for offence 304B of the Indian Penal Code have not been established, a presumption under Section 113B of the Evidence Act cannot come into play or put into service to record a conviction.

Hence, I find and hold that the prosecution has not been able to prove the charges against the appellants beyond all reasonable doubts and the judgment of conviction dated 14.08.2014 and order of sentence dated 21.08.2014 passed in Sessions Trial No. 229 of 2012 arising out of Town (Darbhanga) P.S. Case No. - 96 of 2011, corresponding to G.R. No. 1538 of 2011 by Shri Ram Shreshtha Roy, learned Sessions Judge, Darbhanga are hereby set aside and the appeals are allowed. Appellants, namely, Dhirendra Mishra, Ranjana Devi and Nishant Bhardwaj of Cr. Appeal (SJ) No. 489 of 2014 are on bail and hence they are discharged from the liabilities of their bail bonds. Let appellant, namely, Satyam Bhardwaj of Cr. Appeal (SJ) No. 534 of 2014, who is in custody, be released forthwith if not wanted in any other case.