Govind Rai vs The State Of Jharkhand
2021 Latest Caselaw 4479 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Criminal Appellate Jurisdiction)

                    Criminal Appeal (DB) No. 1027 of 2012

[Against the judgment of conviction dated 23rd August 2012 and the order of sentence
dated 27th August 2012 passed by the learned District & Additional Sessions Judge-I,
Dumka in Sessions Trial No. 291 of 2009]
                                      --------
1. Govind Rai, s/o late Bhuto Rai @ Budhi Rai, r/o village-Machla,
PS-Jarmundi (Taljhari), District-Dumka
2. Ashok Rai, s/o Govind Rai, r/o village-Machla, PS-Jarmundi (Taljhari),
District-Dumka                                           ..... Appellants

                                         Versus
The State of Jharkhand                                          ...... Respondent
                                        --------

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant(s)              : Mrs. Swati Shalini, Amicus
For the State                     : Mr. Shekhar Sinha, PP
                                    --------
                                  JUDGMENT

30th November 2021

Per, Shree Chandrashekhar,J.

Govind Rai and Ashok Rai were put on trial on the charge under section 304-B/34 of the Indian Penal Code for causing dowry death of Shankari Devi. An alternative charge under section 302/34 of the Indian Penal Code was also framed against them. In Sessions Trial No. 291 of 2009, the appellants are convicted and sentenced to RI for life and a fine of Rs.10,000/- each under section 304-B/34 of the Indian Penal Code, with a default stipulation to undergo SI for six months. In so far as the alternative charge under section 302/34 of the Indian Penal Code is concerned, the learned trial Judge did not advert to the evidence in this regard and there is no finding against the appellants whether the charge under section 302/34 of the Indian Penal Code is proved or not.

2. The fardbeyan of Kaleshwar Rai was recorded by the officer-in-charge of Taljhari PS on 9th August 2009 around 10:00 AM at 2 Cr. Appeal (D.B) No. 1027 of 2012

Machla. Kaleshwar Rai received a telephonic information early morning on 9th August 2009 from his son-in-law Ashok Rai that Shankari Devi caught fire and died due to burn injuries. Ashok Rai was married with Shankari Devi in the year 2007. When she visited her parents' place about six months after her marriage she complained about her ill-treatment at the hands of her husband and father-in-law for bringing insufficient dowry. The informant has stated that he, however, brought his daughter to her matrimonial home and tried to reason with her father-in-law expressing his inability to give more dowry. According to the informant, on 4th August 2009 his daughter and son-in-law came to meet him but his daughter was not willing to go back to her matrimonial home. On insistence of his son-in-law he, however, performed Bidai of his daughter on 6th August 2009 and early morning about 04:00 AM on 9th August 2009 he received an information that his daughter has died due to burn injuries.

3. Jarmundi (Taljhari) PS Case No. 141 of 2009 was registered around 04:15 PM on 9th August 2009 under section 304-B/34 of the Indian Penal Code against Govind Rai and Ashok Rai. Charge-sheet No. 160 of 2009 was submitted against Ashok Rai while the investigation against Govind Rai continued. Subsequently, Govind Rai was also sent up for trial by supplementary charge-sheet dated 30 th November 2009. Separate charges under section 304-B/34 of the Indian Penal Code with an alternative charge under section 302/34 of the Indian Penal Code were framed against Ashok Rai on 18th January 2010 and against Govind Rai on 12th March 2010. Both the cases which were separately committed to the Court of Sessions vide Sessions Case No. 291 of 2009 and Sessions Case No. 37 of 2010 were finally amalgamated vide order dated 17th March 2010.

4. Eight witnesses came to the witness box to depose against the accused in Sessions Trial No. 291 of 2009. The witnesses - PW6 Jhamali Devi and PW7 Baldev Rai - who are co-villagers of the accused did not support the prosecution in the Court and were declared hostile. Kaleshwar 3 Cr. Appeal (D.B) No. 1027 of 2012

Rai and his wife Rambhawati Devi have deposed in the Court about harassment of their daughter at the hands of the accused in connection to demand of dowry.

5. The learned District and Additional Sessions Judge-I, Dumka recorded a finding that there are some contradictions in the evidence of prosecution witnesses but on the main issue their evidence is quite consistent with the prosecution case; the witnesses are reliable and trustworthy; defence plea that Shankari Devi caught fire accidentally through Dhibari (small lamp) is not supported by any evidence, and; evidence of PW4 and PW5 establishes that Shankari Devi was put to harassment and cruelty in connection to demand of dowry about six months prior to her death.

6. Govind Rai and Ashok Rai are found guilty under section 304-B/34 of the Indian Penal Code by raising a presumption under section 113-B of the Indian Evidence Act.

7. As noticed above, both the accused are sentenced to RI for life and a fine of Rs.10,000/- each after the following discussion by the learned trial Judge:

"14 ......On going through materials available on record as well as argument advanced by both the sides on the point of sentence and also considering the fact that the convicts have found guilty U/S 304B/34 I.P.C which is serious and heinous crime and as such the convicts are not entitled for any leniency in awarding sentence. Further keeping in view the background to the problem and the intention of the legislature so as to eradicate the evil practice of causing death of a bride for dowry and so, the convicts Govind Rai and Ashok Rai are hereby sentence rigorous imprisonment for life and pay a fine of Rs.10,000 (ten thousandth) each, for the offence punishable u/s 304B/34 I.P.C. In default of non-payment of fine amount, both the convicts will further under go S.I for six months. The convicts are in jail custody. Office is directed to issue conviction warrant accordingly."

8. From evidence of the prosecution witnesses, we gather that Shankari Devi died in the night of 8 th August 2009. There is considerable variation in the prosecution version and the defence plea as regards nature of death of Shankari Devi. According to the prosecution, Shankari Devi suffered homicidal death whereas the accused took a stand that she caught 4 Cr. Appeal (D.B) No. 1027 of 2012

fire accidentally from a Dhibari (small lamp) in the night, her room was engulfed in fire and she died within one hour. The case of the prosecution is primarily based on circumstantial evidence and, as it would appear from a reading of the Sessions Court judgment, the accused are held guilty by raising a presumption under section 113-B of the Indian Evidence Act.

9. In "Vijay Kumar Arora v. State (NCT of Delhi)" (2010) 2 SCC 353, the Hon'ble Supreme Court has observed as under:

"16.2. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle, a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them, on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies."

10. In "Chandmal v. State of Rajasthan" (1976) 1 SCC 621, the Hon'ble Supreme Court has held as under:

"14. It is well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. That is to say, the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused's guilt."

11. Section 2 of the Dowry Prohibition Act, 1961 defines dowry to mean any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person. By now it is well settled that the expression dowry occurring under section 304-B of the Indian Penal Code would carry the same meaning as 5 Cr. Appeal (D.B) No. 1027 of 2012

defined under section 2 of the Dowry Prohibition Act.

12. PW2 admitted in the Court that his statement was not recorded by the police during the investigation. PW3 is maternal grandfather of the deceased who has also stated in his cross-examination that his statement was not recorded by the police. PW5, the informant, claimed in the Court that his daughter was abused by her husband and his father in the matrimonial home. They used to demand money and threatened to kill her if their demand for dowry was not fulfilled. He further stated that his daughter would tell him and her mother about her ill-treatment at the hands of the accused persons. In the cross-examination, PW5 has stated that he was on visiting terms with his son-in-law and would stay with him in his house. About the demand of dowry, he said that he heard about the same about seven weeks before the occurrence but did not lodge any complaint in this regard. PW4 who is the mother of Shankari Devi has also made allegations about demand of dowry by the accused. She said in the Court that about one year prior to her death when her daughter came to her house she informed her about demand of money. She has further stated that her daughter made a complaint at Taljhari Police Station against her husband and father-in-law in connection to demand of dowry by them. Finally she said that she nurtured doubts that her daughter was killed by putting her on fire.

13. In "Vijay Kumar Arora", the Hon'ble Supreme Court has observed that while applying the principles relating to circumstantial evidence, a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them.

14. The evidence of PW4 and PW5 that Shankari Devi would speak about her miseries in her matrimonial home whenever she visited them would remain in the realm of hearsay, for none of the two witnesses has stated in the Court that any demand was made by the accused in their presence. Furthermore, there are significant inconsistencies in the evidence of PW4 and PW5 as regards demand of dowry. PW4 claimed in the Court that she could know about demand of dowry by the accused 6 Cr. Appeal (D.B) No. 1027 of 2012

about one year prior to the occurrence whereas PW5 has said that about seven weeks before his daughter died he could know about demand of dowry by the accused. These witnesses have admitted that they did not lodge a complaint with anyone and, moreover, truthfulness of the alleged statement made by Shankari Devi before her parents cannot be tested because she is dead. No other witness has come forward to support the prosecution case on demand of dowry and there are circumstances which indicate that the informant and his wife gave exaggerated evidence in the Court with a view to implicate the accused for murder of their daughter. One such exaggeration is quite apparent when one glances through the First Information Report. We are of the opinion that the prosecution failed to establish that there was demand of dowry by the appellants soon before Shankari Devi was found dead.

15. Before a presumption of dowry death is raised under section 113-B of the Indian Evidence Act, the prosecution is required to establish that (i) death of a married woman was caused within seven years of her marriage (ii) death was caused by burn or any other bodily injury or has occurred otherwise than under normal circumstances and (iii) soon before her death a married woman was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry.

16. The expression "soon before the death" is not capable of any precise definition and as held in "Kamesh Panjiyar v. State of Bihar" (2005) 2 SCC 388 it would normally imply that the interval should not be much between the cruelty or harassment in connection to demand of dowry and death in question.

17. In "Kamesh Panjiyar", the Hon'ble Supreme Court has observed as under:

"11. ......Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the 7 Cr. Appeal (D.B) No. 1027 of 2012

importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. 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 between the effects 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 mental equilibrium of the woman concerned, it would be of no consequence."

18. In "Sher Singh v. State of Haryana" (2015) 3 SCC 724, the Hon'ble Supreme Court has observed that in a case of dowry death only when the prosecution evidence sufficiently establishes that the victim was treated with cruelty the assumption of deemed guilt of the accused would arise. In our opinion, one of the essential facts for constituting the offence of dowry death that soon before her death Shankari Devi was put to harassment in connection to demand of dowry is not proved in this case.

19. The materials on record do not establish that Shankari Devi was set on fire by the appellants, rather the defence set up by them seems the probable cause of her death.

20. But the defence plea of accidental death of Shankari Devi was disbelieved by the learned Sessions Court for the following reasons:

"12. .......But, plea taken by the defence that the death was accidental due to the self fire in the body of the deceased through "Dhiavari". This plea of the defence has not been supported by any evidence. Further there is no evidence on record which shows that any attempt has been made by the accused for getting the treatment of the deceased when fire was caused in her body. This circumstance and fact goes against the defence. Further there is no question of self burning of the body of a deceased 100% in normal case. No attempt has been made by the inmates to save the deceased from such deep extensive burning or to take the deceased to hospital for her treatment.

So, the plea taken by the defence regarding accidental death of the deceased is not tenable & reasonable as per facts and 8 Cr. Appeal (D.B) No. 1027 of 2012

circumstances appears from the evidences on the record. It has to be explained by the inmates regarding the death of the deceased was either normal or un-natural death. The inmates of the house i.e accused persons have not explained the same. This also goes against them. The death of the deceased is not under normal circumstance. So, there shall be presumption of the dowry death in view of the provision laid down u/s 113B of the Indian Evidence Act. The Court shall presume that such person (inmates of the house) had caused the dowry death of the deceased Shankari Devi. The presumption under "shall presume" is a presumption of law and the Court is bound to take the fact as proved until evidence is adduced successfully to disprove it. No evidence brought by the defence to disprove it in this case. Hence, no option in this regard is left to the Court. Further in view of Sec.106 Evidence Act, there is corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed and the deceased died in normal condition. In this case, the defence has not given cogent explanation in this regard which also goes against the defence. Further 100% burn injuries to the deceased and the death was not reported to the Police nor there is any evidence that the deceased shouted for help or ran away and further she (deceased) was taken away at hospital for treatment and in such circumstances and fact, the theory of accidental fire as set up by the defence is total false and fabricated. The medical evidence also corroborates the prosecution case as the doctor who conducted the autopsy of the dead body of the deceased has found antemortem burn injury over the same. The blisters not found by doctor on the dead body of the deceased. It also does not helpful for the defence version. The medical jurisprudence on this point clarify that the blisters of the skin are usually burst and collapsed by the time, so this argument of the ld. defence Counsel has also not merit. It is true that some parts of the roof of the house was also burnt. But, there are no evidence on record by which it can be said that other articles of the house had burnt. No any seizure list on the record. This also goes against the plea of the defence as neither clothes nor other articles like cot, bed, door & window, grains etc. of the P.O house had burnt. There is evidence on record that the occurrence is of late night and at that time, all the inmates of the house reside in the said house. But, there are no evidence on record which supports the fact that they had tried to save the deceased from such extensive burning. These circumstances and facts clearly denote to the guilt of the accused persons for dowry death. It is true that there is no eye witness of the occurrence but, it is natural due to the fact that the occurrence is of late night and there is no question of coming forward to the witnesses of vicinity during the occurrence, rather after the occurrence. Further in case of dowry death, no eye witness of the occurrence comes forward to depose before the Court because the witnesses are of same village/house where the accused persons resides who caused the occurrence. Moreover, such type of occurrence of dowry death occurs within the four walls of the house or room of the accused persons and as such no question of seeing the said occurrence by the another persons save & except the inmates of the house who remains involved in the said crime. In such circumstances and facts, it is impossible to make available eye witness of the occurrence and 9 Cr. Appeal (D.B) No. 1027 of 2012

it is also very difficult to collect incrementing evidence against assailants. So, this argument of the ld. defence Counsel is also not reasonable and tenable. I further find that the prosecution witnesses have fully supported the prosecution case and further Exhibit: 1 corroborates the prosecution case. Hence, I finally find that there is no merit in the argument of the ld. Lawyer of the defence, rather there is merit and substance in the argument of the ld. Addl. P.P."

21. PW2, PW3, PW4 and PW5 stated in their evidence that the whole body of Shankari Devi was burnt. PW2, PW3 and PW5 admitted in the Court that some part of the roof of the house (Chhapar) of the accused was damaged due to fire. PW4 has, however, denied the defence suggestion that Shankari Devi caught fire from a Dhibari (small lamp). The investigating officer has stated that portico of the house was made of straw and was completely destroyed by fire. He has further stated that Ashok Rai suffered burn injuries over his left and right palm and right fingers. PW6 and PW7 were declared hostile at the instance of prosecution but their evidence cannot be altogether ignored. PW6 stated that there was fire in the house of Ashok Rai and on hearing hulla of Ashok Rai she had gone there. She has further stated that other neighbours had also rushed there and they all tried to put off the fire. This witness was declared hostile at the stage when she said in the Court that her statement was not taken by the police. PW7 gave evidence in the Court that around 10:00 PM in the night when hulla was raised that there was fire in the house of Govind Rai he went there and found that the wife of Ashok Rai had died in the fire. He has also been declared hostile at the stage when he said in the Court that his statement was not recorded by the police. What appears from cross-examination of these witnesses by the prosecution is that they made statements before the police that the relation between husband and wife was not so good (ifr&iRuh ds chp eueqVko Fkk). But even assuming that there were differences between the couple a presumption of dowry death cannot be raised without any proof as regards other essential facts constituting dowry death.

22. In "Vijay Kumar Arora", the Hon'ble Supreme Court put a word of caution by observing that the Court has to be watchful and ensure 10 Cr. Appeal (D.B) No. 1027 of 2012

that conjecture and suspicions do not take place of legal proof. The Hon'ble Supreme Court has observed as under:

"16.1. The law relating to circumstantial evidence is well settled. In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however strong, cannot be allowed to take place of proof and therefore, the court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is no derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances can not fail. Therefore, many a times it is aptly said that "men may tell lies, but circumstances do not"."

23. The medical evidence laid by the prosecution is not conclusive. The characteristic features of a homicidal death by burning are not found over the dead body of Shankari Devi, rather some of the observations of the doctor support the defence plea of accidental death.

24. The burn injuries are classified in different categories depending upon the cause of burns such as due to dry heat, moist heat (scalds), chemicals or radiation. Modi in his book "Medical Jurisprudence and Toxicology" writes that Dupuytren classified burns into six degrees - depending on nature of the severity. The modern classification, however, prefers classification of burns into three categories by grouping the six degrees of burns. The "Epidermal burns" combines first degree and second degree burns. Modi writes that if burns are caused by flame or a heated solid substance, the skin would be blackened and the hair singed at the seat of lesion. These characteristics are generally found in second degree burns. The "Dermo - Epidermal burns" are found in third degree and fourth degree burns - the whole skin is destroyed in fourth degree burns. The third category is the "deep burns". In fifth degree burns great scarring and deformity of the dead body may be seen whereas six degree burns involved charring of the whole limb including the bones. What is relevant to record for the present purposes is that the burns produced by flame may or may not produce blisters but singeing of the hair, eye-brows and blackening of the skin are almost always found if the victim has suffered burn injuries from flames of the fire. Another important characteristic of burn injury is that burns caused by kerosene oil are 11 Cr. Appeal (D.B) No. 1027 of 2012

usually very severe and are easily distinguishable from the characteristic odour and sooty blackening of the body parts.

25. Dr. C.P. Sinha who conducted postmortem examination on 9th August 2009 at about 03:00 PM deposed in the Court that there was deep extensive burn all over the dead body of Shankari Devi. Her skin was found blackened at some places such as face, neck and lower part of both legs. As PW1, the doctor has proved the postmortem report which mentions that the scalp hairs of Shankari Devi were partially burnt. In his opinion, death was caused due to shock as a result of burn injuries and the time elapsed since death was about 24 hours. In the cross-examination, the doctor has stated that he did not find any blisters over the burn areas. HWV COX has written in his book "Medical Jurisprudence and Toxicology" that where the external fire is extremely fierce and full of flames, death may be very rapid indeed, due to inhalation of flame and hot gas which can sear the interior of the mouth nasal passages and cause death by shock or by acute respiratory insufficiency within a matter of minutes.

26. Modi writes that accidental cases are very common in India, especially among women and children on account of their loose garments catching fire while sitting near angethi, chula, Primus stove or open lamps. The writer gives illustration of Gujarati women of Bombay who frequently became victims of burns from Primus stove.

27. We are of the opinion that the prosecution could not prove that Shankari Devi was set on fire by the appellants and they are guilty of committing her murder.

28. Accordingly, the judgment of conviction of Govind Rai and Ashok Rai under section 304-B of the Indian Penal Code and the sentence awarded to them for the said offence in Sessions Trial No. 291 of 2009 are set aside.

29. Criminal Appeal (DB) No. 1027 of 2012 is allowed.

30. Mr. Shekhar Sinha, the learned Public Prosecutor, states that both the appellants are in custody.

12 Cr. Appeal (D.B) No. 1027 of 2012

31. Accordingly, Govind Rai and Ashok Rai, the appellants above-named, shall be set free forthwith, if not wanted in connection to any other case.

32. Mrs. Swati Shalini, the learned Amicus, provided valuable assistance to the Court by preparing three separate convenience compilations of the judgments, short synopsis and extract from medical jurisprudence. The Court appreciates valuable assistance rendered by her.

33. I.A. Nos. 3675 of 2021 and 4469 of 2021 stand disposed of.

34. Let the lower Court records be transmitted to the Court concerned, forthwith.

35. Let a copy of the Judgment be transmitted to the Court concerned through FAX.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 30th November, 2021 RKM NAFR