Shamsher Alam vs The State of Bihar

Vide judgment of conviction dated 08.04.2015, sole appellant, Shamsher Alam has been found guilty for an offence

punishable under Section 304B IPC, 201 IPC and vide order dated 10.04.2015, he has been sentenced to undergo RI

for 8 years under Section 304B IPC, to undergo RI for 3 years as well as to pay fine appertaining to Rs. 5,000/- and in

default thereof, to undergo SI for 3 months additionally and further directed to run the sentences concurrently, by

Additional District & Sessions Judge-3rd, West Champaran at Bettiah in Sessions Trial No. 54/2012.

�2. PW-2, Ibrahim Miyan gave his Fard-e-beyan on 27.07.2011 at about 11:15 hours disclosing therein that he

married his daughter Shamima Khatoon with appellant, Shamsher Alam son of Mahammadin Miyan, resident of

village- Baghambarpur, Khalwa Tola, P.S.- Srinagar, District- West Champaran on 28.04.2008 and at the time of

marriage, he had given dowry according to his means. Since one and half years, her Sasuralwala started demanding

Rs. 30,000/- in lieu of dowry and for that they began to torture. Lastly a case was instituted in the court. Then

thereafter, at the intervention of villagers, the matter was amicably sorted out and in pursuance thereof, they (accused)

have executed Panchnama on 19.12.2010. They, after giving an undertaking that they will not torture Shamima, nor

they will advance any kind of demand of dowry, got Bidai. Again, his daughter was subjected to torture for fulfillment

of Rs. 30,000/- in lieu of dowry which his daughter communicated to him. On this information, he inquired from his

son-in-law whereupon he had informed that he is going to Mumbai with Shamima. Getting this information, he came to

Baghambarpur, Khalwa Tola, to meet his daughter where, he has not found her. On query, his son-in-law was not

consistent. Then thereafter, they pressurized whereupon, he disclosed that after causing murder of his wife has

concealed the dead body beneath soil of the kitchen. He also made query from the villagers who disclosed that

Shamsher, Mahammadin Mian, Salmi Begam, Mausi of Shamsher Alam, elder sister of Shamsher Alam, they all on

account of non fulfillment of demand of dowry, caused murder of his daughter and then, buried the dead body in the

kitchen in order to screen themselves.

�3. On the basis of aforesaid Fard-e-beyan, Srinagar PS Case No. 37/2011 was registered followed with

investigation as well as submission of charge-sheet against the appellant keeping the investigation pending against the

others whereupon trial commenced and concluded in a manner subject matter of instant appeal.

�4. Defence case as is evident from the mode of cross-examination as well as statement recorded under Section

313 CrPC is that of complete denial of the occurrence. It has also been pleaded that deceased died of cardiac arrest in

the kitchen itself while cooking food which was communicated to the prosecution party but prosecution party taking

undue advantage advanced illegal demand which he failed to fulfill whereupon, taking the police in collusion, got this

case filed. However, neither oral nor documentary evidence has been adduced on behalf of defence.

�5. In order to substantiate its case, prosecution had examined altogether 7 PWs, those are, PW-1, Shahida

Khatoon, mother of the deceased, PW-2, Ibrahim Miyan , father of the deceased (informant) PW-3, Babuddin, co-

villager of the appellant, PW-4,

Shah Mohammad Miyan, Co-villager of the appellant, PW-5, Khurshid Alam, brother-in-law of PW-2, PW-6, Sant

Chaudhary, co-villager of the appellant, and PW-7, Fard Hussain. Side by side had also exhibited Ext-1, Signature of

informant over Fard-e-beyan, As stated above neither oral nor documentary evidence has been adduced on behalf of

defence.

�6. Manifold arguments have been raised on behalf of appellant in order to challenge the finding having been

recorded by the learned lower court. The first and foremost argument happens to be that on account of non

examination of doctor as well as non exhibition of PM report, the cause of death is not known. That being so, one of

the major ingredients attracting Section 304B IPC that death should be by burn or by bodily injury or otherwise than in

normal circumstance, is not at all found duly substantiated. It has further been submitted that when the evidences of

the prosecution witnesses are to be gone through, it is evident that another limb of Section 304B IPC is also found

missing. To substantiate the same, it has been submitted that there should be demand of dowry and soon before her

death the deceased should have been tortured by her husband or relative of the husband, on that score, is also found

missing as none of the witnesses had disclosed specifically the exact date or time or proximity with the date of death

of the deceased over demand as well as torture having been inflicted over the deceased at the end of the appellant and

other family members. So, the important ingredient constituting an offence punishable under Section 304B of the IPC

is not at all found duly substantiated.

�7. In an alternative it has also been submitted that witnesses i.e. PWs-3, 4, 6 and 7, co-villagers of the appellant,

though were declared hostile but it is evident that they have not substantiated the factum of demand of dowry as well

as torture having been inflicted upon the deceased soon before her death, contrary to it, they have deposed that the

deceased died of epilepsy. There was cordial relation in between the spouses. So, it completely negativates the

allegation. So far evidence of PWs, 1, 2 and 5 are concerned, it has been submitted that the same is suffering from

vagueness and on account thereof, their testimony could not be accepted on the score of demand as well as torture

having been inflicted upon her soon before her death relating thereto.

�8. In its continuity, it has also been submitted that Investigating Officer has not been examined. That being so, the

interest of the appellant is found highly prejudiced. Magnifying the same, it has been submitted that there happens to

be discloser at the end of the prosecution that dead body was recovered after excavating the earth of the kitchen. Had

there been examination of Investigating Officer, then in that event, the narration having at the end of the prosecution on

that very score would have been properly tested. Furthermore, it has also been submitted that from the evidence of

PW-

2, informant, it is evident that during course of cross -examination at para-10, he had stated that police had taken

signature over a paper which, had there been examination of Investigating Officer would have been properly exposed

whether it was a Fard-e-beyan or was taken during course of other kind of activity. So submitted that the cumulative

effect did not justify the finding having been recorded by the learned lower court, consequent thereupon, the same is

fit to be set aside.

�9. On the other hand, learned APP while supporting the finding of the learned lower court, has submitted that in

usual phenomenon the co-villagers of the accused relating to dowry death became volte face, even then, they have not

supported the plea of the defence in the background of the fact that they have themselves admitted the cause of death

to epilepsy, that means to say, irrespective of non examination of Investigating Officer, the death of deceased is not

under controversy otherwise than normal circumstance as the aforesaid assertion of the witnesses have not been

challenged at the end of appellant. Furthermore, It has also been submitted that from the evidence of the witnesses, it

is evident that it happens to be the prosecution and not the accused who got prejudiced on account of non

examination of Investigating Officer as majority of the witnesses had gone hostile to the prosecution.

�10. Apart from this, It has also been submitted that marriage was in the year 2009, death is in the year 2011 and the

intermediary event discloses discord amongst the spouse over demand of dowry, institution of case which culminated

under the theme of compromise, undertaking having at the end of appellant and then, Bidai, is so intermingled that the

same should be considered in a sequence while appreciating one of the ingredients, torture soon before her death and

on account thereof, all the ingredients of Section 304B of the IPC is found duly substantiated. It has also been

submitted that the appellants failed to rebut the presumption in tune of Section 113B of the Evidence Act and that

being so, it happens to be additional ground to be inferred against the appellant as all the ingredients of 304B IPC is

found duly substantiated.

�11. Before coming to adjudicate upon, there should be a glance over Section 304B of the IPC and the

corresponding act relating thereto. From the plain reading of Section 304B of the IPC which has been introduced to

put safeguard upon a woman from the miseries of dowry by way of prescribing punishment against the accused being

responsible thereof with the aid of Section 113B of the Evidence Act and so, in the backdrop of aforesaid social

legislation, the following ingredients have laid down for satisfaction of Section 304B IPC and the same are as follows:-

A. The death should be within seven years of marriage.

�B. The death should be by burn or bodily injury or otherwise than normal circumstance.

�C. There should be demand of dowry and for that, deceased would have been tortured soon before her death

D. By her husband or relative of the husband.

�12. Then in that circumstance, it will be presumed in terms of Section113B of the Evidence Act to be dowry death

and in the aforesaid background defence/accused will have an opportunity to rebut the same. It is also apparent that

the meaning of cruelty or torture is found duly explained in terms of definition under Section 498A of the IPC.

Now the evidences having been led on behalf of prosecution is to be seen whether the same has been able to

satisfy the ingredients as discussed hereinabove in order to justify the finding having been recorded by the learned

lower court. From perusal of the record, it is evident that two kinds of witnesses are available. The first one happens

to be Naiharwala or connected therewith and those are PWs 1, 2 and 5. The other set of witnesses are co-villagers of

appellant and those are PWs-3, 4, 6 and 7.

�14. Now coming to evidence, it is evident that PW-3, 4, 6 and 7 have not said anything with regard to date of

marriage, rather they simply stated that deceased died of epilepsy. That means to say, death has not been

controverted. Whether the evidence of these witnesses regarding cause of death is reliable or not, is to be seen from

the evidence of other witnesses, that means to say PWs -1, 2 and

�5. At the present juncture, it look prudent to identify that none of these witnesses, i.e. PWs, 1, 2 and 5 are

eyewitnesses to occurrence. That means to say, whatever they disclosed, they disclosed on the information as well as

circumstances so visualizing tested by the appellant during course of cross-examination, suggested to them by the

appellant during course of examination.

�15. PW-1 is the mother of the deceased who had deposed that Shamima Khatoon was her daughter who was

married with Shamsher Alam about 3-4 years ago and accordingly, her daughter had gone to her Sasural where she

stayed. During course of stay, her husband, mother-in-law, father-in-law advanced demand of Rs. 30,000/- and for

that, they began to torture whereupon case was instituted against them. Shamsher came to her place and then took

Rukhsati of Shamima. During course of her stay at her Sasural, Shamsher with the help of his other family members

caused murder of Shamima and then buried her dead body in the kitchen. Later on, Shamsher met with them who on

query disclosed that Shamima happens to be quite well but they could not be able to talk with Shamima whereupon

they became suspicious and made query during course of which, the family members of Shamsher disclosed that

Shamsher had taken away Shamima to Mumbai. Then thereafter, they had gone to police station, informed the police.

Police apprehended Shamsher and recovered dead body after excavation from the place as pointed out by Shamsher

(kitchen room). At that very time, she was present there. Identified the accused. During cross-examination, she had

stated that Shamima was kept in congenial atmosphere for 2-4 months after the marriage. She had gone to Sasural

after one month of marriage. She had come back to her Maika twice or thrice during intervening period and lastly,

Shamsher took her away. Shamsher worked at Bombay since before marriage. Her daughter was not complaining why

Shamsher is residing at Bombay. Her daughter was not insisting to go to Bombay. There was no hardship to her over

her livelihood. In para-3, she had stated that her daughter was residing along with her mother-in-law, father-in-law. Her

daughter had visited her place twice-thrice from the date of marriage to the date of her death. Whenever, she came to

her place she had complained with regard to torture. In para-4, she had stated that apart from having been disclosed

by her daughter regarding demand of dowry, demand of dowry was also made from her after six months of marriage.

In para-5, she had stated that her daughter had instituted a case relating to dowry. Then had denied the suggestion that

no case was instituted. In para-6, she has stated that she had not seen the occurrence. She further stated that after

institution of the case relating to dowry Shamsher had not gone to Bombay. He had gone only once after marriage. In

para-7, she has stated that after coming to know about murder of her daughter, Mukhia, Sarpanch along with others

have gone there. Her husband had gone there. Her husband had instituted the case. Then at para-8, she had stated that

once she had gone to the place of her daughter during her life time and the next, after her murder. She had further

stated that she along with her husband and others were present at the Kitchen. There happens to be two rooms in the

house. Then she had disclosed that there was no fire in the furnace. Kitchen was duly washed. Police had gone there.

After excavating dead body was taken out and then, the dead body was kept in Angan. Police had not recovered

Farsa, Katta etc. Police in standing posture had taken out the dead body. She had not seen cut mark over the dead

body. Police prepared some document relating to dead body. Police had recorded her statement. In para-9, She had

stated that at that very time there was Salwar Sameez over the dead body. It was of red colour. At that very time, none

of the accused persons were present there. Police took away dead body along with them over jeep. Then had denied

the suggestion that Shamsher was staying at Mumbai during course of murder of the victim.

PW-2 is the informant/father of the deceased. He had narrated that his daughter Shamima was married with

Shamsher about three years ago and on account thereof, she had gone to her Sasural where after staying for 2-3

months, his son-in-law advanced demand of Rs. 30,000/- which, he failed to provide and on account thereof,

Shamsher began to torture, whereupon, she came back to his place. Then thereafter, his daughter had instituted a case.

Later on Shamsher and his parents came and then executed Panchnama and further, assured that henceforth, they will

not torture Shamima, case was compromised and then thereafter, they took Bidai of Shamima. While she was staying

they re-agitated the demand and on account thereof, caused murder of his daughter. His son-in-law had come to his

village and during course thereof, his wife inquired about Shamima. He disclosed that Shamima had gone to Mumbai

whereupon, they became suspicious and rushed to Sasural of Shamima and found her absent. Her Sasuralwala were

also found missing. Then they had gone to police station, narrated the event to the police whereupon, Shamsher was

taken to the police station and on query, he disclosed that Shamima has been murdered and her dead body has been

buried in the kitchen room whereupon police along with them came to the place of Shamsher. Kitchen room was dug

and then, dead body was recovered. Police had recorded Fard-e-beyan, whereupon he had put his signature

(exhibited). Identified the accused.

�17. During course of cross-examination at para-3, he had stated that Shamima had visited his place twice-thrice.

Shamima had disclosed regarding demand. He had not visited place of Shamima on that very score. In para-4, he had

stated that he is unable to disclose the exact date of Panchayati but it was held in presence of Mukhiya of Mahavirpur

participated by his co-villager, Manzoor, Saghir and other respectable persons. Document was prepared but he is not

remembering who had signed over the same. The document might have been produced before the police. In para-5, he

had stated that he is not remembering the names of witnesses relating to dowry case instituted by his daughter at an

earlier occasion. At that very time, he had not accompanied his daughter. So, he is unable to say in which court it was

filed and what was the judgment. In para-6, he had stated that he had not seen the occurrence but Shamsher had

disclosed regarding murder of Shamima. In para-7, he had stated that he accompanined the police to the place of

Shamsher where had seen the dead body in the kitchen. At that very time, dead body was wearing red Salwar Sameez

. He had not seen scratch over the dead body. He had not seen the police making any kind of documentation.

Shamsher had disclosed regarding the dead body having been buried in the kitchen. Police had not recovered weapon

from the house. Then at para-9, he had stated that Shamsher has got four brothers and two sisters. He had denied that

rice-soup is being poured off in the ditch having been dug in the kitchen. Then had denied the suggestion that there

was ditch for aforesaid purpose and at that very moment, Shamima suffered from cardiac arrest as a result of which,

she fell down in the said ditch. At that very time, none was present. He had also denied the suggestion that later on,

Shamsher came and had seen Shamima dead, rushed to his place and informed regarding death of Shamima. In para-

10, he had stated that in his presence, the police had not recorded statement of any villager though large number of

persons have assembled. Police got his signature over a document. None other signed. Then at para-12, he had denied

the suggestion that no demand was there, nor deceased was done to death at that very pretext. This case has falsely

been filed putting false and frivolous allegation.

�18. PW-6 is Khurshid Alam who during course of examination-in-chief had reiterated the version of PWs-1 and 2

over marriage of Shamima, demand of dowry, torture during her stay, over which she returned back and a case was

instituted by the deceased against her husband and others relating to torture on the pretext of procurement of dowry,

compromise having been effected, Rukhsati of deceased and then, causing murder of deceased, recovery of dead

body from kitchen after digging. He along with one other had dug. During cross-examination at para-4, he had

admitted that informant happens to be his brother-in-law (Bahnoi). He had further stated that they reached at the place

of occurrence at about 6-7 A.M. Inquest report was prepared, might have been by the S.P.. It was prepare at 4.00

PM. S.P., O/C, D.M. and villagers were present there. Mukhiya, Kanhaiya Pandey were also present. In para-5, he had

stated that in the year 2010, there was demand of dowry and for that, information was given to the court. He had also

stated that they had inquired from Shamsher who confessed that after committing murder he had buried the dead body

of Shamima in the house itself whereupon, they along with police personnel came at the house of accused, kitchen

room was excavated and then dead body was taken out. He had further stated that the dead body was taken away by

the police. He had further stated that inquest was prepared for the same whereupon, he has put his signature. Then had

denied the suggestion that Shamima was suffering from epilepsy and on account thereof, she died. He had also denied

the suggestion that accused had informed him regarding aforesaid mishappening. He had also denied the suggestion

that they have advanced illegal demand from the accused which he declined and on account thereof, this case has

been instituted levelling false and frivolous allegation.

From the evidence available on the record, it is evident that there happens to be no denial at the end of the

appellant that at the time of death deceased was not staying at his place. That being so, in terms of Section 106 of the

Evidence Act, it was incumbent upon him to have explained the death as, the same occurred within four walls of the

house without having any access to anybody during course of occurrence. None of co-villagers, that means to say,

PWs, 3, 4, 6 and 7 have stated that they had gone and seen the death having due to epilepsy. In likewise manner, when

the evidences of PW-1, 2 and 5 have been gone through, it is evident that accused had suggested PW-1 and 5 that she

died of epilepsy while PW-2 that she died on account of heart failure while she was in the kitchen and fell down in a

ditch which was dug for storage of rice-soup. Furthermore, when the evidence of PW-5 has been minutely gone

through, it is apparent that he claimed himself to be a person along with one another who excavated the kitchen in

presence of appellant as well as police pointed out by the appellant and the dead body was taken out, which is found

tallied with the suggestion whatever been made to PW-2 (para-9). That being so, presence of dead body having buried

in the kitchen, excavated, taken out, is found duly substantiated and part thereof had also been admitted by the

appellant by way of suggestion and is found admissible in accordance with Section 7 of the Evidence Act.

In likewise manner, it is apparent while cross-examining PW-2, informant, PW-5, PW-1, it is evident that the

accused had not denied institution of a case at the instance of deceased, compromise having effected subsequently,

execution of Panchnama, an assurance having at their end and then, effecting Rukhsati which happens to be the last

one as the deceased was subjected to death and so all the ingredients are found satisfied. Furthermore, defence had

not examined nor produced any kind of oral or documentary evidence in order to rebut the prosecution.

�21. In Maya Devi v. State of Haryana as reported in 2016 CrLJ 629, soon before death has been taken into

consideration in depth and explained in following manner:-

�16) To attract the provisions of Section 304B, one of the main ingredients of the offence which is required to be

established is that� �soon before her death� she was subjected to cruelty or harassment �for, or in

connection with the demand for dowry�. The expression �soon before her death� used in Section 304B IPC

and Section 113B of the Evidence Act is present with the idea of proximity test. In fact, learned senior counsel

appearing for the appellants submitted that there is no proximity for the alleged demand of dowry and harassment.

With regard to the said claim, we shall advert to while considering the evidence led in by the prosecution. Though the

language used is �soon before her death�, no definite period has been enacted and the expression �soon

before her death� has not been defined in both the enactments. Accordingly, the determination of the period which

can come within the term �soon before her death� is to be determined by the courts, depending upon the facts

and circumstances of each case. However, the said expression would normally imply that the interval should not be

much between the cruelty or harassment concerned and the death in question. In other words, there must be existence

of a proximate and live link between the effect 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 the mental equilibrium of the

woman concerned, it would be of no consequence.

xxxxxxxxxx

�18)This Court, in Mustafa Shahadal Shaikh vs State of Maharashtra (2012) 11 SCC 397 held as under:-

��9. In order to convict an accused for the offence punishable under Section 304-B IPC, the following essentials

must be satisfied:

�(i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal

circumstances;

�(ii) such death must have occurred within seven years of her� marriage;

�(iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any

relatives of her husband;

�(iv) such cruelty or harassment must be for, or in connection with, demand for dowry.

�When the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry

death and such husband or his relatives shall be deemed to have caused her death. If the abovementioned ingredients

are attracted in view of the special provision, the court shall presume and it shall record such fact as proved unless

and until it is disproved by the accused. However, it is open to the accused to adduce such evidence for disproving

such compulsory presumption as the burden is unmistakably on him to do so and he can discharge such burden by

getting an answer through cross-examination of the prosecution witnesses or by adducing evidence on the defence

side.

�11. To attract the provisions of Section 304-B, one of the main ingredients of the offence which is required to be

established is that �soon before her death� she was subjected to cruelty or harassment �for, or in connection

with the demand for dowry�. The expression �soon before her death� used in Section 304-B IPC and Section

113-B of the Evidence Act is present with the idea of proximity test. In fact, the learned counsel appearing for the

appellant submitted that there is no proximity for the alleged demand of dowry and harassment. With regard to the

said claim, we shall advert to the same while considering the evidence led in by the prosecution. Though the language

used is �soon before her death�, no definite period has been enacted and the expression �soon before her

death� has not been defined in both the enactments. Accordingly, the determination of the period which can come

within the term �soon before her death� is to be determined by the courts, depending upon the facts and

circumstances of each case. However, the said expression would normally imply that the interval should not be much

between the cruelty or harassment concerned and the death in question. In other words, there must be existence of a

proximate and live link between the effect 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 the mental equilibrium of the woman

concerned, it would be of no consequence. These principles have been reiterated in Kaliyaperumal v. State of T.N.

and Yashoda v. State of M.P.�

�19) In the case of Ramesh Vithal Patil vs. State of Karnataka (2014) 11 SCC 516 this Court held as follows:-

��20. Moreover, admittedly the deceased committed suicide within a period of seven years from the date of her

marriage. Section 113-A of the Evidence Act is, therefore, clearly attracted to this case. Presumption contemplated

therein must spring in action. This provision was introduced by the Criminal Law (Second Amendment) Act, 1983 to

resolve the difficulty of proof where married women are forced to commit suicide but incriminating evidence is

difficult to get as it is usually available within the four walls of the matrimonial home�..�

�22. Now coming over non examination of doctor as death has not been denied which on account of infirmities

persisting at the end of appellant, clearly suggest otherwise than normal circumstance. In likewise manner, non

examination of Investigating Officer has also not caused prejudice to the appellant as there happens to be no

contradiction visible in the evidence of PWs, 1, 2, 5 while other stood hostile. Furthermore, apart from suggestion

accepting death in the kitchen, having dead body in a ditch, the PWs-1, 2 and 5 are consistent over digging of floor of

kitchen, and then dead body was taken out.

�23. Having minute consideration as well as observation of the evidence available on the record, it is apparent that

prosecution has succeeded in substantiating its case and that being so, the judgment of conviction and sentence needs

no interference.� Hence, instant appeal is found meritless whereupon, dismissed.

�24. Appellant is on bail, his bail bond is, hereby, cancelled directing him to surrender before the learned lower

court to serve out the remaining part of sentence, failing which learned lower court will proceed against the appellant in

accordance with law.