Thakkan Jha and Others vs State of Bihar

Arijit Pasayat, J.—This appeal is directed against the judgment of a learned Single Judge of the Patna High Court affirming the conviction of the present appellants for offences punishable u/s 304 and Section 201 of the Penal Code, 1860 (in short IPC) and sentence of 10 years and three years respectively imposed in respect of the said offences as recorded by the trial court. Both the sentences were directed to run concurrently by the trial Court.

The prosecution version as unfolded during trial is as follows:-

Report was lodged by Rajendra Jha (PW4) to the effect that his daughter Buchi Devi (hereinafter referred to as the deceased) was married to Trilok Jha in the month of Baisakh 1993. The gauna was organised some time thereafter. At the time of gauna, demand was made for a Rajdoot Motorcycle and Rs. 15,000/- in cash. Expressing financial difficulties the informant requested that the demand may not be insisted upon as a condition precedent for the gauna. As some respectable persons of the locality intervened, the gauna was performed sometime in the month of Baisakh 1993. Thereafter the deceased was always sending messages that she was being tortured and subjected to harassment for non-supply of demanded articles. She was subjected to assaults and was being deprived of food and clothing. The informant in the company of some other co-villager went to the house of the appellants and requested them not to torture his daughter merely because he was unable to supply articles on account of financial hardships. But thereafter also the torture continued and the deceased used to send messages regarding such tortures. On the night of 20.7.1999, the deceased lost her life. The death was unnatural. The informant indicated that he came to know of the death which purportedly took place in the night of 20/21.7.1999 only on 26.7.1999. He went to the police station on 27.7.199, but to his utter surprise found the appellants sitting there. After registering the first information report, investigation was undertaken and charge-sheet was placed against the present appellants and the husband who also faced trial. All the four accused persons were found guilty, convicted and sentenced as noted above. The stand of the accused-appellants was that the deceased died on account of ailment, she was cremated after informing her paternal family members and it was Rajendra Jha, PW4 the father of the deceased who performed the last rites. It was urged that the marriage took place in 1990. The prosecution examined seven witnesses to further its version. PW4 is the informant, PW3 is the mother of the deceased, PW2 is the brother and PW1 an uncle of the deceased. Placing reliance on the evidence of the prosecution witnesses, the trial court found that the marriage was solemnized sometime in the year 1993 and not in 1990 as was claimed by the accused-appellant. It found that there was enough evidence of torture for non-fulfillment of the demand of dowry.

The evidence of DW1 who was examined to prove death of the deceased due to ailment was discarded on the ground that his evidence did not inspire confidence. As noted above the trial court convicted all the four accused persons before it. Except the husband, all other accused persons preferred appeal. In appeal the primary stand was that there was no evidence to show about the marriage having being solemnized in 1993 contrary to the stand of defence that it was solemnized in the year 1990. The High Court after analyzing the evidence in great detail came to hold that the judgment of the trial court did not suffer from any infirmity to warrant interference.

In support of the appeal Mr. Mahabir Singh, Learned Counsel for the appellants submitted that the approach of the trial court and the High Court is erroneous. According to him the burden of proving that the marriage took place within the time indicated in Section 304-B IPC was to be discharged by the prosecution. The trial court and the High Court proceeded as if the burden was on the defence. When the prosecution failed to discharge its burden, the conclusion of guilt as arrived at by the courts below cannot be maintained. It was further submitted that the factual scenario as projected, rules out any torture or ill-treatment for dowry as has been concluded by the courts below:-

In any event it was submitted that there is no material so far as Appellants 1 and 3 are concerned because the specific allegation, if any, made by the witnesses related to Appellant 2 alone. The custodial sentence as imposed was also termed to be high.

In response learned counsel for the respondent State submitted that analysing the evidence in great detail both the trial court and the High Court have come to the conclusion about the guilt of the accused and there is no scope for interference with the concurrent findings of fact recorded by the courts below. It was pointed out with reference to the evidence of PW5 that the allegations were generally made against all the accused persons, though specifically against Appellant 2. It was pointed out that PWs 3 and 4 categorically stated that the marriage took place in the month of Baisakh of 1993. There was no cross-examination of these witnesses with reference to the date of marriage. That being so, the question of the prosecution having not discharged the burden does not arise.

In Kans Raj v. State of Punjab, IV (2000) SLT 162=II (2000) CCR 156 (SC)=I (2000) DMC 645 (SC)=(2000) 5 SCC 207, a three-Judge Bench of this Court dealt with the presumption available in terms of Section 113-B of the Evidence Act, 1872 (in short "the Evidence Act") and its effect on finding persons guilty in terms of Section 304-B IPC. It was noted as follows: (SCC p.217. para 9).

"9. The law as it exists now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry such death shall be punishable u/s 304-B. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that:

(a) the death of a woman was caused by bums or bodily injury or had occurred otherwise than under normal circumstances;

(b) such death should have occurred within 7 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 the demand of dowry; and

(e) to such cruelty or harassment the deceased should have been subjected soon before her death."

No presumption u/s 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty or harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the victim. This is so because the expression used in the relevant provision is "soon before". The expression is a relative term which is required to be considered under specific circumstances of each case and no strait-jacket formula can be laid down by fixing any time-limit. The expression is pregnant with the idea of proximity test. It cannot be said that the term "soon before" is synonymous with the term "immediately before". This is because of what is stated in Section 114 Illustration(a) of the Evidence Act; 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 [see Hira Lal v. State (Government of NCT), Delhi, IV (2003) SLT 594=105 (2003) DLT 705 (SC)=III (2003) CCR 41 (SC)=II (2003) DMC 206 (SC)=(2003) 8 SCC 80 ,

The factual position of the present case goes to show that the death was not in normal circumstances. The expression "normal circumstances" apparently means natural death. In other words the expression "otherwise than under normal circumstances" means death no being in the usual course but apparently under suspicious circumstances if not caused by burns or bodily injury. This position was noted before this Court in Shanti v. State of Haryana, I (1991) DMC 187 (SC)=(1991) 1 SCC 371 . In view of the undisputed testimony of PWs3 and 4 about the date of marriage, the trial court and the High Court were justified in concluding that the death took place within seven years of marriage. As noted above there was no cross-examination of PWs 3 and 4 about the date of marriage. The presumption available u/s 113-B in the background of Section 304-B IPC is clearly applicable to the present case.

The evidence of the father (PW4) to the effect that he was informed of the incident on 26.7.1999 was not challenged though the appellants took a defence that he and other members of his family were informed immediately after the death of the deceased. This is a circumstahce which weights heavily against the accused. The question is whether the accusation has been brought home against all the appellants. We find that the evidence is specific against Appellant 2. It is not so in the case of other appellants. The demand of dowry which is the sine qua non for applying Section 304-B IPC was not established so far as Appellants 1 and 3 are concerned. Their conviction, therefore, cannot be maintained. So far as Appellant 2 Bhulok Jha is concerned the evidence is clear and cogent and therefore the conclusions recorded by the trial court and affirmed by the High Court suffer from no infirmity. Considering the background facts the custodial sentence of seven years would meet the ends of justice so far as Section 304-B is concerned. The sentence of three years imposed in respect of Section 201 IPC does not warrant any interference. The sentence shall run concurrently. The bail bonds of Appellants 1 and 3 who are on bail shall stand discharged. Appellant 2 Bhulok Jha who is on bail shall surrender to custody forthwith to serve the remaining period of sentence. The appeal is accordingly disposed of.