Jitendra Tiwary vs The State Of Bihar
2021 Latest Caselaw 1081 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.3415 of 2017
      Arising Out of PS. Case No.-87 Year-2013 Thana- LALGANJ District- Vaishali
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Jitendra Tiwary , Son of Late Chhote Lal Tiwary, R/o Village-Kharauna Pokhar, P.S.-Lalganj, District-Vaishali. ... ... Appellant/s Versus The State Of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s     :        Mrs.Bela Singh,Adv
For the Respondent/s    :        Mr. Zeyaul Hoda,APP

====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date : 22-02-2021 Appellant- Jitendra Tiwary has challenged, herein,

the judgment of conviction dated 31.10.2017 and order of sentence

dated 01.11.2017 whereby the learned Sessions Judge, Vaishali

has found the appellant guilty for offences under Sections 304B

and 201 IPC and has sentenced to undergo rigorous imprisonment

for ten years for offence under Section 304B IPC and rigorous

imprisonment of two years for offence under Section 201 IPC. The

sentences have been ordered to run concurrently. The impugned

judgment and sentences were passed in S.Tr. No.392 of 2015

arising out of Lalganj P.S.Case No.87 of 2013.

2. The prosecution case, as disclosed in the Fardbeyan

of P.W.7 Paras Nath Mishra, is that his daughter Nitu Kumari was

married with the appellant in November, 2012. The victim went to

her Sasural and after 2-3 months the named accused persons

including the appellant started torturing even by physical assault

for non-fulfillment of their demand for more dowry in the form of Patna High Court CR. APP (SJ) No.3415 of 2017 dt. 22-02-2021

Colour T.V. and Gold Chain. The victim had telephonically

informed to P.W.7 about the aforesaid act. Thereafter P.W.7

alongwith his wife Meena Devi (P.W.6) and other relatives went

to village Kharauna of the appellant and requested the family

members including to the appellant to not to torture the victim for

non-fulfillment of dowry demand. However, the appellant and his

mother insisted that until their demand is fulfilled, the torture

would continue.

On 01.06.2013 at about 7.00 AM, the informant got

information that inlaws of his daughter have committed her

murder. Then the informant alongwith other family members

reached near village Kharauna and found that near Primary

School, Lal Basanta, a crowd had gathered. When informant and

others went there, the dead body of the victim was found in a

plastic bag. The informant and others identified the dead body.

The face of the victim was black, the eyes were protruded and

there was ligature mark around her neck. According to informant,

the inlaws had committed her murder and just to screen the

evidence of crime, had packed the dead body in a plastic bag and

thrown away in the field side.

3. The First Information Report is Ext.-1 and on the

basis whereof, the formal FIR of Lalganj P.S.Case No.87 of 2013 Patna High Court CR. APP (SJ) No.3415 of 2017 dt. 22-02-2021

was registered and the same is marked as Ext.3. After

investigation, the police sent up the appellant for trial and

investigation against others was kept pending.

4. During trial, prosecution examined altogether

seven witnesses. P.W.1 Amrit Mishra is full brother of the victim.

P.W.2 Rubi Devi is wife of P.W. 1. P.W.3 Balwant Mishra is

another brother of the victim. P.W.6 Meena Devi is mother and

P.W.7 Paras Nath Mishra is father of the victim. P.W.4 Randhir

Kumar Bhagat is Investigating Officer of the case and P.W.5

Dr.Prabhat Kumar had performed postmortem examination on the

dead body of the victim on 01.06.2013 itself at 5.00 P.M.

5. Ms. Bela Singh, learned counsel for the appellant

submits that the prosecution made disclosure of the demand of

dowry and torture for the same for the first time after death of the

victim. Prosecution witnesses have admitted that they had not

informed to anyone including the Mukhiya regarding demand and

torture. Learned counsel contends that no independent witness has

come forward to substantiate the charge of demand of dowry and

torture for non-fulfillment of the same or to prove any other

ingredient of offence Section 304 B IPC. Only the family members

have turned up as prosecution witnesses. Reliance has been placed

on the case of Gurdeep Singh Vs. The State of Punjab, reported Patna High Court CR. APP (SJ) No.3415 of 2017 dt. 22-02-2021

in (2011)12 SCC 408. According to prosecution witnesses, the

marriage of the victim was solemnized peacefully and happily,

hence there was no demand on the date of marriage. Moreover,

from the prosecution evidence, it would be clear that the parties

belong to very poor starta of the society. Hence, it is unbelievable

that there would be demand of Gold Chain and Colour T.V. etc.

Just to harass, false case has been lodged.

6. Learned counsel for the respondent contends that

plurality of the witnesses is not the requirement of law to prove the

criminal charge. The family members of the victim are competent

witnesses to say about the demand of dowry and torture for the

same. The dowry death was caused within few months of the

marriage, hence in normal behavior, it was not expected that the

matter should have been reported to the police to avoid any strain

in the matrimonial life of the victim. Learned counsel further

submits that it cannot be assumed that the poor people do not have

greed to demand dowry. According to learned counsel, the

ingredients of offence under Section 304B IPC are well established

in this case, hence presumption under Section 113 B of the

Evidence Act of commission of dowry death is there and the

appellant failed to bring on the record, any suggestion that

unnatural death was result of some other reason. Patna High Court CR. APP (SJ) No.3415 of 2017 dt. 22-02-2021

Section 304B of the Penal Code reads as follows:

"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 purpose 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."

Section 113 B of the Evidence Act reads as follows:

"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 Patna High Court CR. APP (SJ) No.3415 of 2017 dt. 22-02-2021

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.

Explanation.-For the purposes of this section,

"dowry death" shall have the same meaning as in

Section 304-B of Indian Penal Code (45 of 1860)."

Section 2 of the Dowry Prohibition Act defines the word

dowry as follows:

"2. Definition of "dowry".-In this Act, "dowry"

means 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 parents of either party to a marriage or by

any other person, to either party to the marriage or

to any other person, at or before or any time after the

marriage in connection with the marriage of the said

parties, but does not include dower or mahr in the

case of persons to whom the Muslim Personal Law

(Shariat) applies.

Patna High Court CR. APP (SJ) No.3415 of 2017 dt. 22-02-2021

Explanation I.-

Explanation II.-The expression "valuable security"

has the same meaning as in Section 30 of the Indian

Penal Code (45 of 1860)."

7. It is well settled by different judicial

pronouncements that the prosecution has to prove the following

four ingredients to prove the charge under Section 304B IPC;

"(a) death of a woman must have been caused by

any burns or bodily injury or her death must have

occurred otherwise than under normal

circumstances;

(b) such death must have occurred within seven years

of her marriage;

(c) soon before her death, she must have been

subjected to cruelty or harassment by her husband

or any relative of her husband; and

(d) such cruelty or harassment must be in connection

with the demand of dowry."

The definition of word dowry can be broken into six

distinct parts.

(1) Dowry must first consist of any property or

valuable security - the word "any" is a word of width Patna High Court CR. APP (SJ) No.3415 of 2017 dt. 22-02-2021

and would, therefore, include within it property and

valuable security of any kind whatsoever.

(2) Such property or security can be given or even

agreed to be given. The actual giving of such

property or security is, therefore, not necessary.

(3) Such property or security can be given or agreed

to be given either directly or indirectly.

(4) Such giving or agreeing to give can again be not

only by one party to a marriage to the other but also

by the parents of either party or by any other person

to either party to the marriage or to any other

person. It will be noticed that this clause again

widens the reach of the Act insofar as those guilty of

committing the offence of giving or receiving dowry

is concerned.

(5) Such giving or agreeing to give can be at any

time. It can be at, before, or at any time after the

marriage. Thus, it can be many years after a

marriage is solemnised.

(6) Such giving or receiving must be in connection

with the marriage of the parties. Obviously, the

expression "in connection with" would in the context Patna High Court CR. APP (SJ) No.3415 of 2017 dt. 22-02-2021

of the social evil sought to be tackled by the Dowry

Prohibition Act mean "in relation with" or "relating

to".

8. P.W.1 deposed that the victim was married in

November 2012 with the appellant. Gift of about Rs.50,000/- was

given to her. The victim went to the house of the appellant,

however, after two to three months, the appellant and his family

members started demanding a Gold Chain and Colour T.V. and for

non- fulfillment of the aforesaid demand, victim was being

tortured even by physical assault. The victim used to inform

telephonically to the family members regarding aforesaid demand

and torture. Thereafter the family members went to the Sasural of

the victim to request them for non-demand and non-torture but

they remained keeping their demands and fulfillment of the same

as condition for peaceful life for the victim. On 01.06.2013 in the

morning, this witness and others got information about murder of

the victim. They went there and found the dead body in a plastic

bag near Lal Basanta School. Police was already there at the place

of recovery of dead body where statement of the father of this

witness was recorded and the case was lodged. This witness was

not cross examined by the defence.

Patna High Court CR. APP (SJ) No.3415 of 2017 dt. 22-02-2021

9. P.W.2 Rubi Devi, the wife of P.W.1, has supported

the allegation of demand of dowry and torture for non-fulfillment

of the same in different way including by commission of assault by

the appellant and other inlaws. There is nothing in the cross

examination of the witness to disbelieve or doubt the veracity of

her testimony. Likewise P.W.3 Balwant Mishra the full brother of

the victim. P.W.6 Meena Devi the mother of the victim and P.W.7

the informant who is father of the victim have consistently

supported that there was demand by the appellant and his family

members of a Gold Chain and Colour T.V. and for non-fulfillment

of the said demand, the victim was being tortured even by

commission of assault. The victim had informed her family

members on telephone and they had attempted to pacify the matter

by promise that as soon as they would be capable they would

fulfill the aforesaid demand. There is nothing in their cross

examination to doubt their trustworthiness.

10. P.W.4 Randhir Kumar Bhagat is Investigating

Officer of the case. He deposed that on 01.06.2013, he got

information that in a field, a dead body of a female is thrown in a

plastic bag in village Lal Basanta. It has come in evidence that Lal

Basanta is nearby one Km. from the village of the appellant.

Thereafter this witness alongwith other police personnel and Patna High Court CR. APP (SJ) No.3415 of 2017 dt. 22-02-2021

Chaukidar went to the place of recovery of dead body from near

the Primary School of Lal Basanta. Though no one from the crowd

could identify the dead body, however a man alongwith some

people reached there and started weeping after a look at the dead

body. The Man disclosed his name as Paras Nath Mishra (P.W.7)

and identified dead body as of his daughter Nitu Devi, wife of the

appellant.

P.W. 5 Dr. Prabhat Kumar who had performed

postmortem examination vide report at Ext.7 deposed that on

external examination, he found that the face was congested, eyes

were protruded, tongue was protruded and ligature mark was there

around the neck. The Doctor noticed bleeding around oral cavity.

On dissection of the body, trachea cartilage was ruptured and

bleeding was present over tracheal cartilage. The Doctor opined

that the death was due to asphyxia caused by strangulation. The

cross examination, does not dispute the competency and manner

of examination done by this witness.

11. Some of the prosecution witnesses i.e. P.W. 2 and

P.W.3 have admitted that there was no demand at the time of

marriage and the marriage was solemnized peacefully and happily.

Since the definition of dowry includes after marriage

demand which was made in connection with marriage, it cannot be Patna High Court CR. APP (SJ) No.3415 of 2017 dt. 22-02-2021

argued that the prosecution case is doubtful for the reason that

some witnesses stated that there was no demand at the time of

marriage and the marriage was solemnized peacefully.

12. Likewise it has come in the prosecution evidence

that the appellant was a labour and other family members

including the females of the family used to sell cloths by carrying

them on their head. The prosecution witnesses further admitted

that the family of the victim were doing the same business of

selling the cloths by carrying them on their head. However, P.W.2

is specific that the victim had never gone to sell the cloths, might

be, since she was a new comer in the family.

No doubt the prosecution evidence discloses that the

parties belong to the lower strata of the society but only for that

reason it cannot be assumed, against the acceptable prosecution

evidence, that since they were poor they would not make any

demand of dowry.

13. A suggestion has been put-forward to the

prosecution witnesses that the victim also used to go to sell cloths

and on the fateful night, she had gone to sell the cloths but did not

return to her house. This suggestion is not sufficient to doubt the

prosecution case for the reason that if the victim was also going to

sell the cloths, she must have accompanied the family members Patna High Court CR. APP (SJ) No.3415 of 2017 dt. 22-02-2021

especially the mother-in-law who was engaged in the said business

as the victim was a newly married lady. No other material has

come on the record to doubt that the death of the victim was for

some other reason and not as claimed by the prosecution.

14. Therefore, in my view, the prosecution has

successfully proved that there was demand of dowry in the form of

a Gold Chain and a Colour T.V. subsequent to the marriage, as

such, was within the definition of dowry demand. The victim died

within six months of her marriage and her death was otherwise

than under normal circumstances because strangulation was found

to be cause of death. Most of the prosecution witnesses are

consistent that the victim was subjected to cruelty/ harassment by

the appellant and other family members in different ways

including by physical assault before her death. Since death was

caused within a very short span of time after marriage the time lag

between the demand and torture and unnatural death was not stale

enough to doubt the connection between the two. Therefore, the

charge against the appellant under Section 304B IPC have been

proved by prosecution beyond all reasonable doubts. Hence,

conviction of the appellant requires no interference.

15. In Gurdeep Singh case (Supra), the facts were

quite different as some of the accused were acquitted on the very Patna High Court CR. APP (SJ) No.3415 of 2017 dt. 22-02-2021

same evidence relying on which the appellants were convicted.

The Court had found that there was no evidence of demand of

dowry soon before death as the demand was made one year prior

to the incident and the prosecution had failed to establish the

proximity test. The scenario of the present case depicts a quite

different story as discussed above.

16. The appellant is in custody since 30.09.2013, as

such, he has already served out more than seven years of the

sentence awarded. The impugned judgment does not show any

noteworthy aggravating circumstance against the appellant who is

a young person. Hence, in my view, the reduction of sentence to

the period already undergone would serve the purpose of justice.

Hence, the sentence is reduced to the period already undergone.

17. With the aforesaid modification of the sentence,

this appeal stands dismissed. Let the appellant be set free at once.

(Birendra Kumar, J)

Nitesh/-

AFR/NAFR                 NAFR
CAV DATE                 12.02.2021
Uploading Date           22.02.2021
Transmission Date        22.02.2021