Lagani Devi vs The State Of Bihar
2021 Latest Caselaw 543 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (SJ) No.125 of 2020
            Arising Out of PS. Case No.-132 Year-2016 Thana- BIHIA District- Bhojpur
     ======================================================

1. Gudhiya Devi @ Gddhiya Kumari @ Guriya Kumari Daughter of Goverdhan Sharma Resident of Village - Gora, Police Station - Bihiya, District -Bhojpur.

2. Sanjeet Sharma Son of Goverdhan Sharma Resident of Village - Gora, Police Station - Bihiya, District -Bhojpur.

... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== WITH

CRIMINAL APPEAL (SJ) No. 129 of 2020 Arising Out of PS. Case No.-132 Year-2016 Thana- BIHIA District- Bhojpur ======================================================

1. Lagani Devi W/o Goverdhan Sharma R/o village- Gora, Police Station-

Bihiya, District- Bhojpur

2. Goverdhan Sharma S/O- Late Kedar Sharma R/o village- Gora, Police Station- Bihiya, District- Bhojpur

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== WITH

CRIMINAL APPEAL (SJ) No. 712 of 2020 Arising Out of PS. Case No.-132 Year-2016 Thana- BIHIA District- Bhojpur ====================================================== Sanjay Sharma Son of Goverdhan Sharma Resident of Village - Gora, P.S.- Bihiya, Distt.- Bhojpur.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (SJ) No. 125 of 2020) For the Appellant/s : Mr. Rajendra Kumar Dubey, Advocate For the Respondent/s : Mr. Bipin Kumar, APP Patna High Court CR. APP (SJ) No.125 of 2020 dt.02-02-2021

(In CRIMINAL APPEAL (SJ) No. 129 of 2020) For the Appellant/s : Mr. Rajendra Kumar Dubey, Advocate For the Respondent/s : Mr. Bipin Kumar, APP (In CRIMINAL APPEAL (SJ) No. 712 of 2020) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Mr. Rajendra Kumar Dubey, Advocate For the Respondent/s : Mr. Bipin Kumar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR CAV JUDGMENT Date : 02-02-2021

Heard the parties.

2. These appeals have been preferred against the

judgment of conviction dated 02.12.2019 and order of sentence

dated 11.12.2019 passed against the appellants by learned

Additional Sessions Judge-X, Ara, Bhojpur, in Sessions Trial

No.297 of 2017 corresponding to Bihiya P.S. Case No.132 of

2016.

Appellant Sanjay Sharma, who is husband of the

alleged victim of dowry death, has been awarded rigorous

imprisonment of 8 years and a fine of rupees ten thousand for

offence under Section 304B of the Indian Penal Code. In default

of payment of fine six months rigorous imprisonment has been

awarded. The appellant Sanjay Sharma has further been

convicted under Section 498A of the Indian Penal Code and

rigorous imprisonment of three years along with fine of rupees

five thousand have been awarded. In default of payment of fine

he was directed to undergo rigorous imprisonment for one

month. Other appellants were convicted under Section 498A of Patna High Court CR. APP (SJ) No.125 of 2020 dt.02-02-2021

the Indian Penal Code only and rigorous imprisonment of three

years besides fine of rupees ten thousand has been awarded. In

default of payment of fine rigorous imprisonment of six months

has been ordered. The sentences have been ordered to run

concurrently and the fine amount is to be paid to the minor son

of the victim.

3. The prosecution case as disclosed in the written

report of Jagroshan Sharma (PW 3) is that daughter's daughter

of Jagroshan Sharma, namely, Anshu Devi daughter of Jagjivan

Sharma was married two years back with appellant Sanjay

Sharma. Just after the marriage there was demand of a

motorcycle from the victim and the victim used to inform about

the demand to the informant. Since the informant had no money,

he assured that motorcycle would be given later on. In the

meantime, the victim gave birth to male child, who was of about

seven months at the time of occurrence. On 04.05.2016, at

about 6:00 PM, someone informed on mobile call to the

daughter-in-law of the informant that victim has died after

sustaining burn injury. To verify about the correctness of the

information, the informant along with Gupteshwar Sharma (PW

1), Om Prakash Sharma (PW 2) and Chulhan Rai (all co-

villagers) went to the village of the appellants in the morning at Patna High Court CR. APP (SJ) No.125 of 2020 dt.02-02-2021

about 6:00 AM on 05.05.2016. The informant saw that the

victim was dead by sustaining burn injuries. The informant was

confident that the appellants committed her murder for non-

fulfillment of the demand of motorcycle. A copy of the written

report is Exhibit-1 on the record.

4. On the basis of the aforesaid written report

Bihiya P.S. Case No.132 of 2016 was registered under Section

304B/34 of the Indian Penal Code and after investigation of the

case police submitted charge sheet accordingly.

5. The learned trial Judge framed charges under

Section 304B/34 of the Indian Penal Code and under Section

302/34 of the Indian Penal Code. During trial the prosecution

examined altogether six witnesses. PW 1 Gupteshwar Sharma,

PW 2 Om Prakash Sharma and PW 3 Jagroshan Sharma are

witnesses on the occurrence. PW 4 Dr. Arun Kumar had

performed the post mortem examination. PW 5 Anil Kumar and

PW 6 Vijay Kumar Singh are Investigation Officer of the case.

6. The defence also produced four witnesses DW 1

Ravi Sharma, DW 2 Tribhuwan Thakur, DW 3 Fulwariya Devi

and DW 4 Dinanath Sharma. All these defence witnesses have

deposed that there was no demand of dowry and the victim

caught fire while cooking food.

Patna High Court CR. APP (SJ) No.125 of 2020 dt.02-02-2021

7. Learned trial Judge has relied on the evidence of

prosecution witnesses and recorded conviction as above.

8. Learned counsel for the appellants Mr. Ajay

Kumar Thakur submits that Pws 1 and 2 are hearsay witnesses.

Hence, the prosecution case is based on sole testimony of PW 3

the informant of this case. There is lack of iota of evidence that

for non-fulfillment of the demand of motorcycle the victim was

being tortured/harassed by the appellants before her death. That

is why no question was put to the appellants as incriminating

circumstance that there was torture to the victim for non-

fulfillment of the aforesaid demand before her death. According

to learned counsel, the learned trial Judge has ignored the

aforesaid serious infirmities in the prosecution case while

recording the judgment of conviction.

9. Learned Additional Public Prosecutor for the

State submits that the prosecution has successfully established

the case of dowry death as the victim died in unnatural

circumstances in her matrimonial house within seven years of

her marriage and there is allegation of demand of dowry before

her death which took place merely within two years of her

marriage. Hence, pedantic approach in appreciation of

evidence cannot be adopted. Moreover, for technical flaws the Patna High Court CR. APP (SJ) No.125 of 2020 dt.02-02-2021

trial Court judgment need not be interfered with.

10. PW 1 Gupteshwar Sharma in para-2 of

examination-in-chief clearly stated that Jagroshan Sharma (PW

3), who is uncle of PW 1 had told him about the demand of

motorcycle. Jagroshan Sharma has not stated that he had told

the aforesaid fact to PW 1. Therefore, testimony of PW 1 is

completely a hearsay evidence. In the same way, PW 2 Om

Prakash Sharma deposed that on the same day (i.e., the date of

occurrence), he came to know that the victim died and there was

demand of dowry. This fact was reported by PW 3 Jagroshan

Sharma, who is uncle of PW 2. Jagroshan Sharma has not

stated in his deposition that he had reported the matter to PW 2.

Therefore, evidence of PW 2 is also completely a hearsay

evidence on the issue of demand of dowry and torture before

death.

11. PW 3 Jagroshan Sharma deposed that Anshu

Devi was his daughter's daughter. Anshu Devi was married

with Sanjay Sharma (appellant) in the year 2014. After

marriage Anshu went to her matrimonial house. The family

members were cordial with her. Anshu Devi was burnt to death.

Appellants Goverdhan Sharma, Sanjay Sharma, Lagani Devi,

Sanjeet Sharma and Gudhiya had burnt her. These peoples were Patna High Court CR. APP (SJ) No.125 of 2020 dt.02-02-2021

demanding a motorcycle and for non-fulfillment of demand she

was burnt to death. This fact was informed to him by daughter-

in-law Asha Devi, who got information on mobile call that

Anshu has been burnt to death. Thereafter, the informant along

with others went to sasural of Anshu Devi, found the dead body

there. Burn injury was there all over the body. In the cross-

examination, the witnesses stated that he had never made any

complaint about demand of motorcycle to any authority in the

past. Prior to death of the victim the informant had attended the

"Chhathi" celebration of the new born child of the victim. The

appellants had informed about the death of the victim and

thereafter the informant and others had gone there.

Neither the daughter-in-law of this witness was

produced nor there was any specific evidence as to who had

informed to the informant that the victim was burnt to death by

the appellants.

12. PW 4 Dr. Arun Kumar, who had performed the

post mortem examination had found 90-95% burn injury from

top to bottom on the body of the victim and that what the reason

of death. PW 5 and PW 6 supported the investigation part of the

case done by them.

13. Thus, from the prosecution evidence it is Patna High Court CR. APP (SJ) No.125 of 2020 dt.02-02-2021

established that the victim was married two years prior to her

death in her matrimonial house. The death was caused by burn

injury i.e., in unnatural circumstances. It is also established that

there was demand of motorcycle by the appellants before the

death. However, there is complete lack of evidence that for non-

fulfillment of the demand aforesaid the victim was being

tortured or treated with cruelty.

Section 304-B of the Indian 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 purposes Patna High Court CR. APP (SJ) No.125 of 2020 dt.02-02-2021

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."

14. Section 113B of the Evidence Act, 1872 which

raises presumption against the accused on proof of the

ingredients of the offence under Section 304B of the Indian

Penal Code by the prosecution reads as follows:

"Section 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.

Explanation.- For the purposes Patna High Court CR. APP (SJ) No.125 of 2020 dt.02-02-2021

of this section, "dowry death", shall have the

same meaning as in section 304-B of the

Indian Penal Code (45 of 1860)."

15. In Bakshish Ram and Another V. The State

of Punjab reported in (2013) 4 SCC 131, the Hon'ble Supreme

Court quoted its earlier judgment in M Srinivasulu V. State of

A.P. reported in (2007) 12 SCC 443 which is being reproduced

below:

"8. '4. .... The presumption

(under Section 113-B of the Evidence Act)

shall be raised only on proof of the

following essentials:

(1) The question before the

court must be whether the accused has

committed the dowry death of a woman.

(This means that the presumption can be

raised only if the accused is being tried for

the offence under Section 304-B IPC.)

(2) The woman was subjected

to cruelty or harassment by her husband or

his relatives.

(3) Such cruelty or harassment Patna High Court CR. APP (SJ) No.125 of 2020 dt.02-02-2021

was for, or in connection with any demand

for dowry.

(4) Such cruelty or harassment

was soon before her death."

16. The aforesaid proposition was reiterated in

Baijnath and Others V. State of Madhya Pradesh reported in

AIR 2016 SC 5313 in following words:

"32. Noticeably this

presumption as well is founded on the

proof of cruelty or harassment of the

woman dead for or in connection with any

demand for dowry by the person charged

with the offence. The presumption as to

dowry death thus would get activated only

upon the proof of the fact that the deceased

lady had been subjected to cruelty or

harassment for or in connection with any

demand for dowry by the accused and that

too in the reasonable contiguity of death.

Such a proof is thus the

legislatively mandated pre-requisite to

invoke the otherwise statutorily ordained Patna High Court CR. APP (SJ) No.125 of 2020 dt.02-02-2021

presumption of commission of the offence

of dowry death by the person charged

therewith.

33. A conjoint reading of these

three provisions, thus predicate the burden

of the prosecution to unassailably

substantiate the ingredients of the two

offences by direct and convincing evidence

so as to avail the presumption engrafted in

Section 113B of the Act against the

accused. Proof of cruelty or harassment

by the husband or her relative or the

person charged is thus the sine qua non to

inspirit the statutory presumption, to draw

the person charged within the coils thereof.

If the prosecution fails to demonstrate by

cogent coherent and persuasive evidence to

prove such fact, the person accused of

either of the above referred offences cannot

be held guilty by taking refuge only of the

presumption to cover up the shortfall in

proof."

Patna High Court CR. APP (SJ) No.125 of 2020 dt.02-02-2021

In the case before this Court; there is complete lack

of evidence that the victim was subjected to cruelty or

harassment by the appellants in connection with any demand for

dowry. Thus, in my view, one of the important ingredients to

prove the charge under Section 304-B or 498-A of the Indian

Penal Code is missing in this case.

17. In the case of Amar Singh V. State of

Rajasthan reported in AIR 2010 SC 3391, convicts Jagdish and

Gordhani were acquitted by the High Court. The State

challenged the acquittal before the Supreme Court and the

Supreme Court refused to interfere with acquittal because there

was lack of evidence against Jagdish and Gordhani regarding

nature of harassment and torture meted out by them and the

Hon'ble Supreme Court in para-23 of the judgment observed as

follows:

"....... a prosecution witness who

merely uses the word "harassed" or

"tortured" and does not describe the exact

conduct of the accused which, according to

him, amounted to harassment or torture may

not be believed by the Court in cases under

Sections 498A and 304B IPC..."

Patna High Court CR. APP (SJ) No.125 of 2020 dt.02-02-2021

In this case, the sole prosecution witness has not

even used the words that the victim was "harassed" or

"tortured" much less the nature of harassment and torture,

before her death.

18. Thus, the cumulative consideration of the

prosecution evidence does not inspire confidence that the

prosecution has established beyond reasonable doubt the

charges levelled against the appellants as there is complete lack

of evidence of harassment or torture for non-fulfillment of

demand of motorcycle. The learned trial Judge has miserably

overlooked the aforesaid lapses. Hence, judgment of conviction

passed against the appellants is not sustained in law.

19. Accordingly, the impugned judgment of

conviction and sentence are hereby set aside and these appeals

are allowed.

20. Appellant Sanjay Sharma is in jail. Let him be

released at once. Other appellants are exonerated from the

liability of their bail-bonds.

(Birendra Kumar, J) Mkr./-

AFR/NAFR                AFR
CAV DATE                01.02.2021
Uploading Date          02.02.2021
Transmission Date       02.02.2021