Jharkhand High Court
Sahdeo Sahu @ Sahdeo Sao @ Sahdeo ... vs The State Of Jharkhand on 10 May, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 1363 of 2017
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(Against the judgment of conviction dated 02.03.2017 and order of
sentence dated 04.03.2017 passed by learned District and Additional
Sessions Judge at Ghatsila in Sessions Trial No. 310 of 2011 arising
out of Baharagora (Barsole) P.S. Case No. 06 of 2011, corresponding to
G.R. No. 43 of 2011)
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1. Sahdeo Sahu @ Sahdeo Sao @ Sahdeo Sao @ Sahdev Sahu @ Sahdev
Sao, son of Harihar Sahu.
2. Harihar Sahu @ Harihar Sao, son of Late Probodh Sahu.
Both resident of village - Dariasole, P.S. Barsole, P.O. Baharagora
(Barsole) District - East Singhbhum (Jharkhand).
... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
.....
For the Appellant : Mr. Girish Mohan Singh, Advocate
For the Respondent ` : Mr. Bhola Nath Ojha, A.P.P.
.....
CAV on: 26/04/2023 Pronounced on: 10/05/2023
Per Sujit Narayan Prasad, J.:
1. The instant appeal, under Sections 374 (2) of the Code of Criminal
Procedure, has been preferred against the judgment of conviction dated
02.03.2017 and order of sentence dated 04.03.2017 passed by learned
District and Additional Sessions Judge at Ghatsila in Sessions Trial No.
310 of 2011 arising out of Baharagora (Barsole) P.S. Case No. 06 of
2011, corresponding to G.R. No. 43 of 2011, whereby and whereunder,
the appellants have been convicted under Section 304B/34 of IPC and
to undergo rigorous imprisonment for life for the offence under Section
304B/34 of the I.P.C. each and fine of Rs.25,000/- each. In default of
payment of fine, they have further been directed to undergo simple
imprisonment for nine months each.
2. The prosecution story in brief as per the allegation made in the FIR,
reads as under:
On 28.01.2011, an FIR had been instituted under Section
304B/34 of I.P.C. on the basis of the statement given by Pratap
Chandra Sahu, P.W.-2, who has stated that his daughter Sushma
(deceased) was married with Sahdeo Sao in Feb, 2009. For about six
months of her marriage she was kept well in her matrimonial home then
after her husband and father-in-law started demanding Rs.50,000/- cash
and one colour T.V. Whenever, he used to go to her in laws house, his
daughter informed her about the ill treatment she was suffering from
the hands of the family members of the in-laws. The neighbourers of
her in laws have also informed him that she is subjected to physical
harassment by the accused persons. For some days his son-in-law was
living in the house of Veena (his elder sister) house at Baridih
Jamshedpur. She used to instigate Sahdeo Sao for demanding money
and television which was informed by his daughter to him and other
family members. After some time, his son-in-law was living separately
in Jamshedpur and whenever he used to go to office he used to lock
Sushma in a room. Whenever they used to go there they talk with the
deceased through a window. He further alleged that on 27.01.2011 the
accused persons after assaulting his daughter have forcibly
administered poison to his daughter and strangulated her resulting in
her death.
On the basis of the fard beyan, FIR was instituted and
accordingly investigation proceeded and thereafter charge sheet had
been submitted. Cognizance had been taken and the charges were
framed and for the content of the charges the accused persons pleaded
not guilty and claimed to be tried. Thereafter, the trial proceeded and
the learned trial court after considering the materials available on
record the testimonies of the witnesses, convicted the present appellants
under Section 304B/34 of IPC.
3. Mr. Girish Mohan Singh, learned counsel for the appellants has
submitted that there is no incriminating material against the appellants
since there is no eye witness to the occurrence witnessing the
commission of crime by the appellants. The ground has been taken that
if the testimony of the witnesses will be taken into consideration, it
would be evident that none of the witnesses has deposed against the
appellant that they are behind the commission of crime rather it would
be evident from the testimony of the witnesses that the victim while
was in the house has been found dead and when she was taken to the
hospital, then the doctor has found her dead.
Learned counsel for the appellants on the basis of the aforesaid
ground has submitted that it is not a case where the judgment of
conviction ought to have been passed due to the reason that there is no
conclusive evidence against the appellants.
4. While on the other hand, Mr. Bhola Nath Ojha, learned APP appearing
for the respondent has submitted that it is incorrect on the part of the
appellants to take the ground that there is no incriminating evidence
against them rather the appellant no.1 being the husband is answerable
regarding the cause of death in view of the provision of Section 113-B
of the Indian Evidence Act coupled with Section 304B of the IPC since
the death admittedly has occurred in the matrimonial house of the
deceased by consuming poison within seven years of her marriage, as
such, the mandate of Section 113-B of the Evidence Act requires that
the onus is upon the husband to show his bona fide by showing cause a
to what led the deceased to commit suicide by consuming poison.
Learned counsel for the State on the basis of the aforesaid
submission has submitted that the learned trial court has considered the
aforesaid aspect of the matter basis upon which the judgment of
conviction has been passed, therefore, it is not a case where the
judgment of conviction requires interference.
5. We have heard the learned counsel for the parties, perused the
documents available on record as also the testimony of the witnesses.
6. This Court in order to consider the legality and propriety of the
impugned judgment, deems it fit and proper to refer the testimony of
the prosecution witnesses who are 08 in number.
P.W.1 Balram Sahu, is a teacher and the uncle of the deceased.
He has deposed that on 27.01.2011, the deceased was admitted in
Baharagora Hospital. Her husband made a phone call to him and
informed him that his wife is ill and on query he has informed that he
took her to Baharagora hospital. He went there and had seen her dead
body but had not seen any injury on the body of the deceased. In the
cross-examination, he has stated that the deceased got married in the
year 2009 and Sahdeo Sao has kept his motorcycle in his house which
he took away on 26.01.2011.
P.W.2 Pratap Chandra Sahu, is the father of the deceased. He has
stated that for about six months after her marriage, Sushma was kept
well by her husband and in-laws and thereafter, accused persons and
Veena Sahu started subjecting her to physical and mental cruelty and
started demanding Rs.50,000/- and one colour television. He has also
stated that the accused persons and Veena Sahu used to beat her and
denied food to her. He has also stated that the deceased used to inform
him about the incidences and used to tell him that they will kill her.
Thereafter, Sahdeo Sao took the deceased to Jamshedpur and kept her
in the house of Veena Devi, elder sister of Sahdeo. There also she was
subjected to cruelty and harassment. He has also stated that thereafter
they started living separately and her husband, Sahdeo Sao, used to
lock her in a room while going out on work. He has further stated that
whenever he used to visit her daughter, he found the door locked and
used to talk to his daughter through the window. He has also stated that
her husband used to beat her and administered poison. He had seen
injury nearby her neck. On 27.01.2011, they have administered poison
to Sushma and killed her. His son-in-law informed him on phone about
the serious condition of Sushma and then he went there and had seen
her dead body on a cot.
P.W.3 Arun Kumar Sahu, is the cousin of the deceased. He has
stated that in February, 2009 Sushma was married with Sahdeo and for
about six months, she was kept well in her in-laws house and thereafter,
the accused persons started demanding dowry. He has also stated that
her husband used to lock her in a room in a rented house at Birsanagar.
At the time of her death, she was in her in-laws house in the village
where she was kept under locked room and on 27.01.2011 they
received a call regarding illness of Sushma. He has also stated that the
Doctor informed him that she was brought dead in the hospital and she
was having injuries on her left temple.
P.W.4 Rajiv Lochan Sahu, is the brother of the deceased. He has
also stated that for about six months, her sister was kept well in her in-
laws house and then after her father-in-law and husband started
demanding Rs.50,000/- and a colour television and due to non-
fulfillment of demand, they subjected Sushma to cruelty and Veena
Devi, elder sister of the Sahdeo Sahu, did not give her food and used to
assault her. He has also stated that earlier Sushma was kept by her
husband in the house of Veena Devi and thereafter, they started living
in a rented house and when her husband used to go out, he used to lock
Sushma in a room. On 20.01.2011, when her father went to meet
Sushma, she was locked in a room and the neighbourers told that they
never talk to anyone.
P.W.5 is Dr. Vibhakar Kumar, who did postmortem on the dead
body of the deceased, Sushma and was of the opinion that the injuries
were antemortem in nature caused by hard and blunt object. The Doctor
had found rigors mortis was present, abdomen little distended and eyes
were cyanosed as also both conjunctiva achymosed and left upper
eyelid ecchymosed. He has also found bleeding through nostril and
fecal discharge present. On examination, the following injuries on the
body of the deceased:
―Abrasion:- (i) .5 cm x .25 cm over right side of angle of jaw, (ii) .5 cm
x .25 cm left side of upper part of neck situated 3 cm infrolateral to left
angle of jaw, (iii) .5 cm x .5 cm on right elbow back.
Contusion :- 13 cm x 9 cm over left side of face.
Internal injury:- on dissection of scalp right frontal are, right occipital
area of scalp contused. Right temporal mussels is contused. .5 cm x .5
cm area. Brain congested. On dissection of neck area under which
above mentioned abrasion enclose are contused up to soft tissue.
Trachea mucosa congested and froth present in the trachea. Internal
organs are congested. Bladder empty. Stomach contains urinary fluid
about 100 cc. Mucosa congested with presence of haemorragic spot.‖
However, the cause of death was kept reserved till availability of
chemical examination report for which viscera was preserved and the
same was send to FSL. Later on, viscera report, Ext.-5, was received on
13.10.2012 in which the chemical examiner found the presence of
organo phosphorous pesticides in the viscera of the deceased, which is
used for agricultural purposes and is highly poisonous.
P.W.6 Goutam Gahu, has a tea stall at Jaipura P.S. Barsole. He
has stated that his tea stall is adjacent to the place of occurrence. He has
stated that on hearing hulla, he went there and had seen the dead body
of a lady being taken out from the house of Harihar Sao. He has
deposed that she was the wife of Sahdeo Sao but they have not seen
them ever quarreling. He has also stated that all day long the main door
of the house of Harihar Sao was kept under lock and no one used to go
there.
P.W.7 Savitri Devi and P.W.8 Mahadeo Singh, have been
declared hostile and have denied to give any statement to the I.O.
regarding the manner of occurrence. However, the IO has not been
examined in this case.
7. This Court, after having discussed the testimony of the witnesses has
found therefrom that the deceased was subjected to torture physically
and mentally for the reason of demand of dowry of Rs.50,000/- and one
colour television as would appear from the testimony of P.W. 1, P.W. 2
and P.W. 3. It further appears from the testimony of P.W. 6,
independent witnesses, having a tea stall who has deposed that on
hearing hulla, he went there and had seen the dead body of a lady being
taken out from the house of Harihar Sao. He has stated that she was the
wife of Sahdeo Sao but they have not seen them ever quarreling. He has
also stated that all day long the main door of the house of Harihar Sao
was kept under lock and no one used to go there.
8. The incriminating fact has surfaced in course of trial about the
commission of crime of murder of the deceased in her matrimonial
house. The demand of dowry has also been corroborated by the
testimony of the prosecution witnesses and the death of the deceased
occurred within the seven years of marriage. The learned trial court, on
the basis of the aforesaid evidence, has proceeded to examine the
witnesses in order to examine as to whether the ingredient available
under Section 304-B is attracted against the appellant or not and after
giving the thoughtful consideration of the aforesaid fact, the learned
trial court has convicted the appellants for the office committed under
Section 304B/34 of IPC.
At this juncture, before entering into the merit of the case,
reference of Section 304-B is required to be made which reads as
under:
"304-B. Dowry death. -- (1) 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 before her death she was subjected to cruelty or harassment by her
husband or any relative of her husband for, or in connection with, any
demand for dowry, such death shall be called "dowry death", and such
husband or relative shall be deemed to have caused her death.
Explanation. - For the purposes of this sub-section, "dowry" shall have
the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28
of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment
for a term which shall not be less than seven years but which may extend
to imprisonment for life.‖
9. The Hon'ble Apex Court in Mustafa Shahadal Shaikh vs. State of
Maharashtra, (2012) 11 SCC 397 has been pleased to deal with the
applicability of Section 304-B of I.P.C. The relevant paragraph of the
said judgment reads 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.‖
The Hon'ble Apex Court further in Maya Devi and Anr. vs. State
of Haryana, (2015) 17 SCC 405, has been pleased to observe at para-
24 as under:
24. The aforesaid provisions were considered by this Court in Bansi
Lal v. State of Haryana [Bansi Lal v. State of Haryana, (2011) 11 SCC
359 : (2011) 3 SCC (Cri) 188] wherein it was held that: (SCC p. 366,
para 17)
―17. While considering the case under Section 304-B, cruelty has
to be proved during the close proximity of the time of death and it
should be continuous and such continuous harassment, physical or
mental, by the accused should make life of the deceased miserable
which may force her to commit suicide.‖
This Court further held that where the cruelty has been proved during
the close proximity of the time of death then the provisions of Section
113-B of the Evidence Act, 1872 providing for presumption that the
accused is responsible for dowry death, have to be pressed in service.
In paras 19 and 20 of the judgment, this Court has further held as
follows: (Bansi Lal case [Bansi Lal v. State of Haryana, (2011) 11
SCC 359 : (2011) 3 SCC (Cri) 188] , SCC pp. 366-67)
―19. It may be mentioned herein that the legislature in its wisdom
has used the word ‗shall' thus, making a mandatory application on the
part of the court to presume that death had been committed by the
person who had subjected her to cruelty or harassment in connection
with any demand of dowry. It is unlike the provisions of Section 113-A
of the Evidence Act where a discretion has been conferred upon the
court wherein it had been provided that court may presume abetment
of suicide by a married woman. Therefore, in view of the above, onus
lies on the accused to rebut the presumption and in case of Section
113-B relatable to Section 304-B IPC, the onus to prove shifts
exclusively and heavily on the accused. The only requirements are
that death of a woman has been caused by means other than any
natural circumstances; that death has been caused or occurred within
7 years of her marriage; and such woman had been subjected to
cruelty or harassment by her husband or any relative of her husband
in connection with any demand of dowry.
20. Therefore, in case the essential ingredients of such death have
been established by the prosecution, it is the duty of the court to raise
a presumption that the accused has caused the dowry death. It may
also be pertinent to mention herein that the expression ‗soon before
her death' has not been defined in either of the statutes. Therefore, in
each case, the court has to analyse the facts and circumstances
leading to the death of the victim and decide if there is any proximate
connection between the demand of dowry and act of cruelty or
harassment and the death.‖
10. The argument which has been advanced on behalf of the appellants that
no conclusive evidence has come regarding causing murder of the
deceased, and therefore, it is sufficient ground to hold the conviction to
be unsustainable. But, the aforesaid ground, according to the considered
view of this Court, cannot be said to be sustainable in view of the
thoughtful consideration given by the learned trial court regarding the
provision of Section 113-A and 113-B of the Evidence Act wherein it
has been provided that the onus in a case if the ingredient of Section
304-B is available, will be upon the husband if the death has occurred
in the matrimonial house within seven years of the marriage.
Consideration of the provision of Section 113-A and 113-B of the
Evidence Act has been dealt with by the Hon'ble Apex Court in
Amruthlal Liladhar Bhai Kotak and Ors. vs. State of Gujarat, (2015)
4 SCC 452. Relevant paragraph of the said judgment reads as under:
"15. With regard to the applicability of Sections 113-A and 113-B of the
Evidence Act, in State of Punjab v. Iqbal Singh [(1991) 3 SCC 1 : 1991
SCC (Cri) 513] , this Court observed that the legislative intent is clear to
curb the menace of dowry deaths, etc. with a firm hand. It must be
remembered that since crimes are generally committed in the privacy of
residential homes, it is not easy to gather direct evidence in such cases.
That is why the legislature has by introducing Sections 113-A and 113-B
of the Evidence Act, tried to strengthen the prosecution hands by
permitting a presumption to be raised if certain foundational facts are
established and the unfortunate event has taken place within a period of
seven years.
17. In Thanu Ram v. State of M.P. [(2010) 10 SCC 353 : (2010) 3 SCC
(Cri) 1502] this Court has observed certain criteria with regard to
establishment of guilt in the cases of dowry death. The first criterion
being that the suicide must have been committed within seven years of
marriage. The second criterion is that the husband or some relative of
the husband had subjected the victim to cruelty, which led to the
commission of suicide by the victim. This is when Section 113-A of the
Evidence Act indicates that in such circumstances, the Court may
presume, having regard to all the circumstances of the case, that such
suicide has been abetted by her husband or by such relative of her
husband. In the present case that we are dealing with, both the
abovementioned criteria have been satisfied, since the deceased died
within seven years of marriage and with the version of the witnesses, it
has been further proved that there was cruelty meted out to the deceased
immediately before her unfortunate death.
In Sher Singh @ Partapa vs. State of Haryana, (2015) 3 SCC
724. Relevant paragraph of the said judgment reads as under:
"8. Within the short span of three years, Parliament realised the
necessity to make the law more stringent and effective by introducing
amendments to the Dowry Act, as well as IPC by enacting Act 43 of
1986. These amendments, inter alia, made the offences dealt with in the
Dowry Act cognizable for certain purposes and also made them non-
bailable as well as non-compoundable. By the introduction of Section 8-
A of the Dowry Act the burden of proof was reversed in respect of
prosecutions for taking or abetting the taking or demanding of any dowry
by making the person concerned responsible for proving that he had not
committed any such offence. Contemporaneously, Section 304-B was
inserted into IPC. The newly added section stipulates that:
―304-B. Dowry death.--(1) 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 before her death she was subjected to cruelty or harassment by her
husband or any relative of her husband for, or in connection with, any
demand for dowry, such death shall be called ‗dowry death', and such
husband or relative shall be deemed to have caused her death.‖
(emphasis supplied)
Sub-section (2) makes this offence punishable with imprisonment for a
term which shall not be less than seven years and which may extend to
imprisonment for life. Section 113-B was further incorporated into the
Evidence Act; (yet again ignoring the futility, if not ignominy, of
retaining the withered appendage in the form of the existing Section 113,
and further perpetuating an anachronism). Be that as may be, the newly
introduced Section 113-B states that when the question is whether a
person has committed the death of a married woman and it is shown that
soon before her death such woman had been subjected by such person to
cruelty or harassment or in connection with any demand for dowry, the
court shall presume that such person has caused dowry death. The
Explanation harks back to the simultaneously added Section 304-B IPC
for the definition of dowry death, clarifying thereby that the person
alluded to in this section is her husband or any relative of her husband. It
is noteworthy that whilst Section 113-A of the Evidence Act reposes
discretion in the court to draw a presumption so far as the husband's
abetment in his wife's suicide, Parliament has mandated the court to
draw at least an adverse inference under Section 113-B in the event of a
dowry death. It seems to us that where a wife is driven to the extreme
step of suicide it would be reasonable to assume an active role of her
husband, rather than leaving it to the discretion of the court.
14. In Section 113-A of the Evidence Act, Parliament has, in the case of a
wife's suicide, ―presumed‖ the guilt of the husband and the members of
his family. Significantly, in Section 113-B which pointedly refers to
dowry deaths, Parliament has again employed the word ―presume‖.
However, in substantially similar circumstances, in the event of a wife's
unnatural death, Parliament has in Section 304-B ―deemed‖ the guilt of
the husband and the members of his family. The Concise Oxford
Dictionary defines the word ―presume‖ as: supposed to be true, take for
granted; whereas ―deem‖ as: regard, consider; and whereas ―show‖ as:
point out and prove. Black's Law Dictionary (5th Edn.) defines the word
―show‖ as--to make apparent or clear by the evidence, to prove;
―deemed‖ as--to hold, consider, adjudge, believe, condemn, determine,
construed as if true; ―presume‖ as--to believe or accept on probable
evidence; and ―presumption‖, in Black's, ―is a rule of law, statutory or
judicial, by which finding of a basic fact gives rise to existence of
presumed fact, until presumption is rebutted‖.
In Ramesh Veital Patil vs. State of Karnataka, (2014) 11 SCC
516. Relevant paragraph of the said judgment reads as under:
"19. The relevant observations of this Court could be quoted : (Narwinder
Singh case [Narwinder Singh v. State of Punjab, (2011) 2 SCC 47 : (2011)
1 SCC (Cri) 601] , SCC p. 53, para 21)
―21. The High Court upon meticulous scrutiny of the entire evidence
on record rightly concluded that there was no evidence to indicate the
commission of offence under Section 304-B IPC. It was also observed that
the deceased had committed suicide due to harassment meted out to her by
the appellant but there was no evidence on record to suggest that such
harassment or cruelty was made in connection to any dowry demands.
Thus, cruelty or harassment sans any dowry demands which drives the
wife to commit suicide attracts the offence of ‗abetment of suicide' under
Section 306 IPC and not Section 304-B IPC which defines the offence and
punishment for ‗dowry death'.‖
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. Section 113-A reads as under:
―113-A. Presumption as to abetment of suicide by a married
woman.--When the question is whether the commission of suicide by a
woman had been abetted by her husband or any relative of her husband
and it is shown that she had committed suicide within a period of seven
years from the date of her marriage and that her husband or such relative
of her husband had subjected her to cruelty, the court may presume,
having regard to all the other circumstances of the case, that such suicide
had been abetted by her husband or by such relative of her husband.
Explanation.--For the purposes of this section, ‗cruelty' shall have the
same meaning as in Section 498-A of the Penal Code, 1860.‖
In this case the prosecution has led evidence to establish cruelty or
harassment caused to the deceased, which is rightly taken into account by
the High Court. Thus, the foundation for the presumption exists. The
appellant, however, has led no evidence to rebut the presumption.
Therefore, it can be safely concluded in the facts of this case that the
appellant abetted the suicide of the deceased.
11. Thus, it is evident from the provision of Section 113-B of the Evidence
Act which speaks about idea of proximity test. However, the said
examination would normally imply that the interval should not be much
between the cruelty or harassment and the death in question. Reliance
in this regard may be placed upon judgment rendered by the Hon'ble
Apex Court in Banshilal vs. State of Haryana, (2011) 11 SCC 359.
Relevant paragraph of the said judgment reads as under:
"18. In such a fact situation, the provisions of Section 113-B of the
Evidence Act, 1872 providing for presumption that the accused is
responsible for dowry death, have to be pressed in service. The said
provisions read as under:
―113-B. Presumption as to dowry death.--When the question is whether a
person has committed the dowry death of a woman and it is shown that
soon before her death such woman had been subjected by such person to
cruelty or harassment for, or in connection with, any demand for
dowry, the court shall presume that such person had caused the dowry
death.‖
(emphasis supplied)
19. It may be mentioned herein that the legislature in its wisdom has used
the word ―shall‖ thus, making a mandatory application on the part of the
court to presume that death had been committed by the person who had
subjected her to cruelty or harassment in connection with any demand of
dowry. It is unlike the provisions of Section 113-A of the Evidence Act
where a discretion has been conferred upon the court wherein it had been
provided that court may presume abetment of suicide by a married woman.
Therefore, in view of the above, onus lies on the accused to rebut the
presumption and in case of Section 113-B relatable to Section 304-B IPC,
the onus to prove shifts exclusively and heavily on the accused. The only
requirements are that death of a woman has been caused by means other
than any natural circumstances; that death has been caused or occurred
within 7 years of her marriage; and such woman had been subjected to
cruelty or harassment by her husband or any relative of her husband in
connection with any demand of dowry.
20. Therefore, in case the essential ingredients of such death have been
established by the prosecution, it is the duty of the court to raise a
presumption that the accused has caused the dowry death. It may also be
pertinent to mention herein that the expression ―soon before her death‖
has not been defined in either of the statutes. Therefore, in each case, the
Court has to analyse the facts and circumstances leading to the death of
the victim and decide if there is any proximate connection between the
demand of dowry and act of cruelty or harassment and the death.‖
12. The provision of Section 113-B is very clear and from its perusal it is
evident that when the question is whether the person has committed
dowry death of a women and it is shown that soon before her death
such woman had been subjected by such person to cruelty or
harassment for, or in connection with, any demand for dowry, the could
shall presume that such person had caused the dowry death. Reference
in this regard be made to the judgment rendered by the Hon'ble Apex
Court in State of Rajasthan vs. Jaggu Ram, (2008) 12 SCC 51,
wherein at paras-12 and 13, the Hon'ble Apex Court has observed as
under:
―12. Section 113-B of the Evidence Act lays down that if soon before her
death a woman is subjected to cruelty or harassment for, or in connection
with any demand for dowry by the person who is accused of causing her
death then the court shall presume that such person has caused the dowry
death. The presumption under Section 113-B is a presumption of law and
once the prosecution establishes the essential ingredients mentioned
therein it becomes the duty of the court to raise a presumption that the
accused caused the dowry death.
13. A conjoint reading of Section 304-B IPC and Section 113-B, Evidence
Act shows that in order to prove the charge of dowry death, prosecution
has to establish that the victim died within 7 years of marriage and she
was subjected to cruelty or harassment soon before her death and such
cruelty or harassment was for dowry. The expression ―soon before her
death‖ has not been defined in either of the statutes. Therefore, in each
case the court has to analyse the facts and circumstances leading to the
death of the victim and decide whether there is any proximate connection
between the demand of dowry, the act of cruelty or harassment and the
death‖
13. This Court on the basis of the legal position as stipulated under Section
304B of IPC and 113-B of the Evidence Act and going through the
judicial pronouncements in this regard and going through the facts of
this case wherein also demand of dowry has conclusively been proved
and the death has occurred in the matrimonial house within seven years
of marriage, therefore, the presumption as per the provision as
contained under 113-B of the Evidence Act coupled with Section 304B
of IPC, according to the considered view of this Court, is well
applicable herein.
14. This Court, on the basis of the discussion made hereinabove and after
going through the finding recorded by the learned trial court as also
considering the fact in entirety, is of the considered view that the
judgment passed by the learned trial court requires no interference.
15. Accordingly, the instant appeal fails and stands dismissed.
16. Let the Lower Court Records be sent back to the Court concerned
forthwith, along with the copy of this Judgment. [
I agree, (Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
(Subhash Chand, J.)
Jharkhand High Court, Ranchi
Dated: 10/05/2023
Saurabh / A.F.R.
