Shrawan Bishwakarma vs The State of Bihar

Amareshwar Sahay, J.—The present appellant Shrawan Bishwakarma along with two other accused namely Budhan Vishwakarma and Neera Devi were tried together for the charge u/s 304-B/34 of the Indian Penal Code. The 2nd Additional Sessions Judge, Palamau by his Judgment of conviction and order of sentence dated 31.03.1998 and 01.04.1998 respectively in Sessions Trial No. 387 of 1993 convicted the appellant for the offence u/s 304-B of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of ten years. So far the other two co-accused Budhan Vishwakarma and Neera Devi is concerned, they were acquitted from the charges by the Trial Court. Against the said Judgment of conviction and order of. sentence, the appellant has preferred the present appeal.

The case relates to unnatural death of Saraswati Devi @ Bimla Devi on 15.04.1993 in the house of the appellant, i.e. the husband of the deceased. The informant Kameshwar Vishwakarma (P.W.-2) lodged a written report on 16.04.1993 before the Police which was registered as F.I.R. against the present appellant and two other accused persons (since acquitted). In the written report, the informant alleged that his daughter Saraswati Devi @ Bimla Devi was married to the present appellant Shrawan Bishwakarma of village Rabda and after the marriage, his son-in-law i.e. the appellant started demanding one scooter and cash of Rs. 5,000/- by way of dowry but, since the informant due to his financial incapacity could not meet his demand and therefore, the appellant started torturing and ill treating his daughter.

On 15.04.1993, at about 7:30 P.M., the informant received information that his daughter had been done to death by her in laws. Thereafter, he along with other relatives went to village Rabda and saw the dead body of his daughter. He found that there were some injuries of dark red colour on the neck of the deceased. He further alleged in the written report that earlier he had given a lawyer''s notice to his son-in-law (the appellant) with regard to the torture being made to his daughter. The informant alleged that his daughter was brutally murdered by the appellant and his parent.

The Police, after investigation, submitted chargesheet against all the three persons u/s 304-B/34 of the Indian Penal Code and then the accused persons were put on trial.

In order to establish the charges altogether 10 witnesses were examined on behalf of the prosecution. On the basis of evidence on record, the learned Trial Court convicted this appellant only, for the charge u/s 304-B of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of ten years and acquitted the other two accused.

Mr. A.K. Kashyap, learned Counsel appearing for the appellant, assailing the Judgment of conviction and order of sentence passed against the appellant, submitted that the present appellant has been convicted by the Trial Court with the aid of Section 113-B of the Indian Evidence Act by drawing presumption against him. According to the learned Counsel, no presumption u/s 113-B of the Evidence Act could have been drawn by the Trial Court against the appellant because the prosecution failed to prove the main ingredient of the offence namely, that the appellant demanded dowry and tortured or ill treated the deceased soon before her death in connection with demand of dowry. In this regard, he referred the evidence of the informant P.W.-2 and submitted that P.W.-2, in paragraph -9 of his evidence has stated that he had no knowledge as to how his daughter died.

It is a settled law that in order to convict an accused u/s 304-B of the Indian Penal Code, the following essential must be satisfied:

i. The marriage took place within seven years of death;

ii. The death of the woman must have been caused under abnormal circumstances i.e. burns or bodily injuries or otherwise than any normal circumstances;

iii. Such torture and ill treatment must be for or in connection with demand of dowry; and

iv. Soon before the death, the woman must have been subjected to harassment or cruelty by her husband or in-laws.

It is only when the above ingredients are established by the acceptable evidence, such death shall be called dowry death and such husband or his. relatives shall be. deemed to have caused her death.

The deceased, according to the Doctor P.W.-3 died due to asphyxia caused by strangulation and according to the Doctor, he found round legature mark on the neck of the deceased. But, the informant, he stated in paragraph - 12 of his evidence that he had not seen any rope near the dead body.

PW.-2, the informant has admitted that at the time of marriage, there was no demand of dowry and he further admitted that after the lawyer''s notice was given to the appellant, there was no demand of dowry from the side of the appellant. He also admitted to have received the reply of his lawyer''s notice. The lawyer''s notice given by the informant has been brought on record from the side of defence and the same was marked as Ext.-A. The informant accepted Ext.-A to be the Notice given by him. The date of said lawyer''s notice is 07.10.1992 whereas, the death of the deceased has taken place on 15.04.1993 i.e. after about 6 months of the said notice. The informant has specifically admitted in his evidence that after the lawyer''s notice, no demand of dowry was made by the appellant. There is no evidence also that after the lawyer''s notice sent by the informant to the appellant, anytime thereafter the appellant ill treated or tortured the deceased in any manner in connection with the demand of dowry.

Therefore, in my view, the submissions of Mr. A.K. Kashyap is correct to the extent that there is no evidence that any demand of dowry was made by the appellant or he ill treated, harassed or tortured his wife in that connection soon before the death of the deceased and therefore, the presumption u/s 113-B of the Evidence Act can not be drawn against the appellant that he committed dowry death of the deceased.

The Investigating Officer has also admitted in his evidence that no witness of the village of the informant did support the allegation of demand of dowry or torture by this appellant.

in the present case, there is no dispute that the first ingredients of Section 304-B mentioned above were satisfied but the question is whether the remaining three ingredients were satisfied or not?

From the evidence on record, I found that there is no acceptable evidence of demand of dowry or subjecting the deceased to cruelty in connection with dowry soon before her death. The evidence of P.W.-2 is self contradictory and it appears that he has developed his case which was not stated in the written report submitted by him.

As discussed above, from the evidence of P.W.-2 itself, it appears that there was no demand of dowry or torture to the deceased after the lawyer''s notice was given to the appellant in the month of October, 1992 whereas, the death of the deceased took place on 15.04.1993, therefore, there is no proximity or live link with the alleged demand of dowry alleged by the informant and the death of the deceased which took place on 15.04.1993.

In view of the above discussions and findings, I hold that the prosecution has not been able to establish the charge u/s 304-B of the Indian Penal Code against the appellant.

In view of my above discussions and findings it is not necessary to discuss in detail the evidence on record.

Accordingly, I hold that the learned Trial Court has committed error both in law as well as facts in convicting the appellant for the charge u/s 304-B of the Indian Penal Code with the aid of Section 113-B of the Indian Evidence Act.

Consequently, this appeal is allowed. The conviction and sentence passed by the Trial Court against the appellant is hereby set aside. The appellant, who is on bail, is discharged from the liability of bail bonds.