Patna High Court
Surendra Ravidas vs The State Of Bihar on 2 February, 2024
Bench: Chakradhari Sharan Singh, Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1075 of 2018
Arising Out of PS. Case No.-51 Year-2016 Thana- PAKARIBARAW District- Nawada
======================================================
Rajesh Ravidas S/o Surendra Ravidas , R/o vill.- Chhatarwar , P.S.-
Pakribarawan, District- Nawada.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1071 of 2018
Arising Out of PS. Case No.-51 Year-2016 Thana- PAKARIBARAW District- Nawada
======================================================
Surendra Ravidas S/o Late Kamo Ravidas, R/o Vill.- Chhatarwar, P.S.-
Pakribarawan, District- Nawadah.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1075 of 2018)
For the Appellant/s : Mr. Shivendra Prasad, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 1071 of 2018)
For the Appellant/s : Ms. Soni Shrivastava, Advocate
Mr. Ramparvesh Kumar, Advocate
Ms. Sarandha Suman, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE MR. JUSTICE KHATIM REZA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH)
Date : 02-02-2024
These appeals have been preferred by the appellants
under Section 374(2) of the Code of Criminal Procedure, putting
Patna High Court CR. APP (DB) No.1075 of 2018 dt.02-02-2024
2/16
challenge to the impugned judgment of conviction and the order of
sentence dated 07.07.2018, passed by learned 5th Additional District and
Sessions Judge, Nawada in Sessions Trial No. 673 of 2017, 125 of 2017
arising out of Pakribarawan P.S. Case No. 51 of 2016 whereby the
appellants have been convicted and sentenced as under:
Cr. Appeal (DB) No. 1075 of 2018
Sentence
Appellant Penal provision In default of
Imprisonment Fine (Rs.)
fine
Rajesh Under Section 304B/34 of the R.I. for life - -
Ravidas IPC
Cr. Appeal (DB) No. 1071 of 2018
Penal provision Sentence
Appellant Imprisonment Fine (Rs.) In default of
fine
Surendra Under Section 304B/34 of the R.I. for life - -
Ravidas IPC
2. The brother of the deceased, Pramod Kumar Das
(PW-4) is the informant whose written report, addressed to the
Officer-In-Charge of Pakaribaraw (Nawada), is the basis for
registration of the concerned Pakribarawan P.S. Case No. 51 of
2016 on 25.03.2016 disclosing commission of offence punishable
under Section 304B read with Section 34 of the Indian Penal Code
( IPC for short). The informant alleged that the deceased was
married to the appellant Rajesh Ravidas of Criminal Appeal (DB)
No. 1075 of 2018, nearly one and a half years ago. He alleged
cruelty meted out to the deceased by her in-laws including these
appellants for non-fulfillment of demand of dowry, which they
Patna High Court CR. APP (DB) No.1075 of 2018 dt.02-02-2024
3/16
used to make. Despite intervention of Panches, no compromise
could be reached. He also alleged that once his sister had called
him on mobile belonging to his cousin Ranjeet (not examined)
alleging demand of dowry and she being subjected to cruelty,
whereupon the informant's brother Subodh Kumar and his nephew
Navlesh Kumar (both not examined) had gone to her matrimonial
home to bring her back to her paternal home (maikaa). The
husband of the deceased (Rajesh Ravidas, an appellant) and his
father Surendra Ravidas, who is also the appellant, did not allow
the deceased to go to her maikaa. The appellant Surendra Ravidas
(father-in-law of the deceased) and his wife (mother-in-law of the
deceased) had asked them to come after Holi with money
whereafter only they would allow the deceased to go to her
maikaa. On 24.03.2016, the informant received a call on his
cousin's mobile phone that the victim had been killed by
poisoning. On reaching the matrimonial home of the deceased, he
found her dead body lying. Upon inquiry, the informant and his
family members learnt that the deceased had been poisoned, which
led to her death. These appellants and the relatives, he alleged, had
fled away from their house.
3. The dead body of the deceased was sent for
postmortem examination. During the postmortem examination, no
Patna High Court CR. APP (DB) No.1075 of 2018 dt.02-02-2024
4/16
external injury was found visible on the dead body. The cause of
death could not be ascertained. The viscera was kept for chemical
analysis and was sent for forensic examination. The FSL recorded
following finding in its report (Exhibit-5):-
"ALUMINIUM PHOSPHIDE was detected in the
contents of glass jars 'A & B' as described above. Aluminum
Phosphide commercially known as 'CELPHOS' is a severe-
gastro-intestinal irritant.
It is used as a grain preservative and is highly
poisonous."
4. The police upon completion of investigation had
submitted chargesheet whereupon cognizance was taken of the
offence punishable under Section 304B read with Section 34 of the
IPC. Charge was later framed against these appellants for
commission of offence punishable under Section 304B read with
Section 34 of the IPC. It is worthwhile mentioning that the wife of
the appellant Surendra Paswan, i.e., mother-in-law of the deceased
had absconded and, therefore, her case was separated from these
appellants.
5. At the trial, the prosecution examined altogether 8
witnesses including the father of the deceased (PW-1); brother of
the deceased (PW-4); the sister-in-law, (Bhabhi) of the deceased,
(PW-6). Shravan Kumar Das, a neighbor of the informant, being
Patna High Court CR. APP (DB) No.1075 of 2018 dt.02-02-2024
5/16
scribe of the First Information Report, deposed at the trial as PW-
5. The doctor, who had conducted the postmortem examination,
was examined as PW-3, whereas the IO as PW-2. In addition, two
other witnesses, i.e., PW-7 and PW-9 tendered at the trial.
6. In addition to the oral evidence of the prosecution's
witnesses, as noted above, the prosecution brought on record
following documentary evidence to establish the charge of
commission of offence punishable under Section 304B read with
Section 34 of the IPC.
Sl. Description Exhibit Number
No.
1. Written Report Exhibit-1
2. Formal FIR Exhibit- 2
3. Postmortem Report Exhibit- 3
4. Signature of Pramod Kumar Exhibit- 4
(Informant) on Written Report
5. Viscera Report Exhibit-5
7. After closure of the evidence of the prosecution's
witnesses, the appellants were questioned under Section 313 of the
CrPC, so as to give them an opportunity to explain the
incriminating circumstance emerging against them. Following was
the common question put to both of them under Section 313 of the
CrPC.
"प्रशन:- आपके खखलाफ साक् है खक आप खदनांक
24.03.2016
को अन् मु दलै हम के साथ खमलकर अपने घर
Patna High Court CR. APP (DB) No.1075 of 2018 dt.02-02-2024
ग्राम छतरवार पकखरवरवा, खजला नवादा मे सूचक की बहन
नीलम कुमारी को दहे ज़ मे मोटरसाइखकल और नगद रप्ा नहीं
खमलने के कारण ज़हर दे कर हत्ा कर खद्ा?
उतर:- जी नही।"
8. Thereafter, the defence examined two witnesses,
namely, Sitaram Paswan (DW-1) and Ramvilash Ravidas (DW-2)
to make out a case that the deceased had died of snake bite.
9. Mrs. Soni Srivastava, learned counsel appearing on
behalf of the appellants has firstly submitted that the finding of
conviction for the offence punishable under Section 304B of the
IPC as recorded by the trial court verges on perversity in the
absence of any definite evidence of demand of dowry, which is an
essential ingredient to constitute an offence punishable under
Section 304B of the IPC. She contends that except for vague oral
evidence in the depositions of PW-1, PW-4 and PW-5 of demand
of dowry, there is no other evidence to show that there was any
such demand of dowry, within the meaning of the provisions of the
Dowry Prohibition Act, 1961. She further contends that there is not
even vague evidence with reference to the approximate time when
any demand of dowry was made. She contends accordingly that
the prosecution miserably failed to prove at the trial that there was
any demand of dowry at all before the death of the deceased, let
Patna High Court CR. APP (DB) No.1075 of 2018 dt.02-02-2024
alone, " soon before her death". She has placed reliance on the
Supreme Court's decision in case of Phulel Singh v. State of
Haryana, reported in (2023) 10 SCC 268 and Sher Singh v. State
of Haryana, reported in (2015) 3 SCC 724. She contends that the
trial court, while recording the finding of conviction, has taken
into account the report of the FSL, though the appellant was not
questioned at all with reference to the said report, under Section
313 of the CrPC.
10. Learned Additional Public Prosecutor representing
the State has defended the finding of conviction recorded by the
trial court. She submits that the prosecution ably proved at the trial
that the deceased died within one and a half years of her marriage
to the appellant Rajesh Ravidas. The FSL report suggests that she
died of poison, i.e., under unnatural circumstance. The prosecution
witnesses have proved at the trial that there was demand of dowry
and that the deceased was subjected to cruelty. She accordingly
contends that the prosecution, thus, successfully established a case
of 'dowry death' within the meaning of Section 304B of the IPC, at
the trial. She has accordingly submitted that having noticed the
requirements of Section 304B of the IPC and Section 113 of the
Act, the trial court has rightly convicted the appellants and
sentenced them imprisonment and fine.
Patna High Court CR. APP (DB) No.1075 of 2018 dt.02-02-2024
11. We have perused the impugned judgment and order
of the trial court and the trial court's records. We have given our
thoughtful consideration to the rival submissions advanced on
behalf of the parties as noted above. Before addressing the
evidence adduced at the trial in the background of the above noted
submissions which have been advanced on behalf of the parties,
we deem it proper to address on the essential requirements for
proving a case of dowry death punishable under Section 304B of
the IPC, which reads as under:-
"304B. 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."
12. On plain reading of Section 304 (B) of the IPC, it
can be easily discerned that following are the essential ingredients
to establish an offence punishable under Section 304 (B) of the
Indian Penal Code:-
Patna High Court CR. APP (DB) No.1075 of 2018 dt.02-02-2024
(i) the death of a woman is caused by any
burns or bodily injuries or occurs otherwise than
under normal circumstances.
(ii) such death must have occurred within
seven years of her marriage
(iii) it is 'shown' that soon before the death
of such women, she was subjected to cruelty or
harassment by her husband or any relative of her
husband for, or in connection with any demand of
dowry
(iv) only if all the above noted conditions
are fully established at the trial, a dowry death can be
said to have been caused and husband or relative of
such women shall be deemed to have caused her
death.
13. We have no hesitation in ruling that if either of the
above noted four ingredients are absent, the death of woman shall
not fall within the definition of dowry death under Section 304(B)
of the Indian Penal Code.
14. There is no gain saying thus that it is the duty of the
prosecution at the trial to establish the above noted essential
ingredients for successfully prosecuting an accused for "dowry
death".
15. Further, the explanation to Sub-Section (1) of
Section 304 (B) states that the word "dowry" shall have the same
meaning as in Section 2 of the Dowry Prohibition Act, 1961.
16. Section 2 of the Dowry Prohibition Act reads as
under:-
Patna High Court CR. APP (DB) No.1075 of 2018 dt.02-02-2024
"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 2 [or any time after the marriage] 3 [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.
Explanation II.--The expression "valuable
security" has the same meaning as in section 30 of the Indian
Penal Code (45 of 1860)."
17. It is evident on reading of Section 2 of the Dowry
Prohibition Act that demand of any property or valuable security
by a party to a marriage to the other party or by the parents of
either party to a marriage or to any other person shall fall within
the definition of dowry if such demand, 'at' or 'before' or 'any time
after the marriage' only if, it is in connection with the marriage of
the said parties.
18. In the present case, we find from the evidence of the
father of the deceased (PW-1), brother of the deceased (PW-4) and
sister-in-law (Bhabhi of the deceased PW-6) that there is no
specific reference to even the approximate time of demand of
dowry, if any, made by these appellants. They have vaguely
deposed at the trial that there was demand of dowry. It cannot be
deduced from the evidence of these witnesses that if any such
demand was made by the appellants, it was done soon before the
death of the deceased.
Patna High Court CR. APP (DB) No.1075 of 2018 dt.02-02-2024
19. Learned counsel for the appellants have rightly
placed reliance on the decision of Supreme Court in case of Sher
Singh (supra), wherein it has been held that the cruelty and
harassment meted out to the deceased should have a live link with
the demand of dowry, to constitute an offence punishable under
Section 304 (B) of the IPC. It would be apt to reproduce
paragraph no. 16 of the said judgment which reads as under:-
"...16. As is already noted above,
Section 113-B of the Evidence Act and Section
304-B IPC were introduced into their respective
statutes simultaneously and, therefore, it must
ordinarily be assumed that Parliament
intentionally used the word "deemed" in Section
304-B to distinguish this provision from the
others. In actuality, however, it is well-nigh
impossible to give a sensible and legally
acceptable meaning to these provisions, unless
the word "shown" is used as synonymous to
"prove" and the word "presume" as freely
interchangeable with the word "deemed". In the
realm of civil and fiscal law, it is not difficult to
import the ordinary meaning of the word "deem"
to denote a set of circumstances which call to be
construed contrary to what they actually are. In
criminal legislation, however, it is unpalatable to
adopt this approach by rote. We have the high
authority of the Constitution Bench of this Court
both in State of Travancore-Cochin v. Shanmugha
Vilas Cashewnut Factory [AIR 1953 SC 333] and
State of T.N. v. Arooran Sugars Ltd. [(1997) 1 SCC
326] , requiring the Court to ascertain the
purpose behind the statutory fiction brought
about by the use of the word "deemed" so as to
Patna High Court CR. APP (DB) No.1075 of 2018 dt.02-02-2024
give full effect to the legislation and carry it to its
logical conclusion. We may add that it is generally
posited that there are rebuttable as well as
irrebuttable presumptions, the latter oftentimes
assuming an artificiality as actuality by means of
a deeming provision. It is abhorrent to criminal
jurisprudence to adjudicate a person guilty of an
offence even though he had neither intention to
commit it nor active participation in its
commission. It is after deep cogitation that we
consider it imperative to construe the word
"shown" in Section 304-B IPC as to, in fact,
connote "prove". In other words, it is for the
prosecution to prove that a "dowry death" has
occurred, namely,
(i) that the death of a woman has been caused in
abnormal circumstances by her having been
burned or having been bodily injured,
(ii) within seven years of her marriage,
(iii) and that she was subjected to cruelty or
harassment by her husband or any relative of her
husband,
(iv) in connection with any demand for dowry,
and
(v) that the cruelty or harassment meted out to
her continued to have a causal connection or a
live link with the demand of dowry.
We are aware that the word "soon" finds
place in Section 304-B; but we would prefer to
interpret its use not in terms of days or months or
years, but as necessarily indicating that the
demand for dowry should not be stale or an
aberration of the past, but should be the
continuing cause for the death under Section 304-
B or the suicide under Section 306 IPC. Once the
presence of these concomitants is established or
shown or proved by the prosecution, even by
preponderance of possibility, the initial
Patna High Court CR. APP (DB) No.1075 of 2018 dt.02-02-2024
presumption of innocence is replaced by an
assumption of guilt of the accused, thereupon
transferring the heavy burden of proof upon him
and requiring him to produce evidence dislodging
his guilt, beyond reasonable doubt. It seems to us
that what Parliament intended by using the word
"deemed" was that only preponderance of
evidence would be insufficient to discharge the
husband or his family members of their guilt. This
interpretation provides the accused a chance of
proving their innocence. This is also the
postulation of Section 101 of the Evidence Act. The
purpose of Section 113-B of the Evidence Act and
Section 304-B IPC, in our opinion, is to counter
what is commonly encountered--the lack or the
absence of evidence in the case of suicide or
death of a woman within seven years of marriage.
If the word "shown" has to be given its ordinary
meaning then it would only require the
prosecution to merely present its evidence in
court, not necessarily through oral deposition,
and thereupon make the accused lead detailed
evidence to be followed by that of the
prosecution. This procedure is unknown to
common law systems, and beyond the
contemplation of CrPC..."
20. In case of Major Singh (supra), the Supreme Court
has outlined essential ingredients of Section 304 (B) of the Indian
Penal Code and the circumstances attracting the presumption of
dowry death under Section 113 (B) of the Evidence Act in
paragraph nos. 10 and 11 of the said judgment, which read thus:-
"10. To sustain the conviction under
Section 304-B IPC, the following essential
ingredients are to be established:
Patna High Court CR. APP (DB) No.1075 of 2018 dt.02-02-2024
(i) the death of a woman should be caused
by burns or bodily injury or otherwise than under a
'normal circumstance';
(ii) such a death should have occurred
within seven years of her marriage;
(iii) she must have been subjected to
cruelty or harassment by her husband or any relative
of her husband;
(iv) such cruelty or harassment should be
for or in connection with demand of dowry; and
(v) such cruelty or harassment is shown to
have been meted out to the woman soon before her
death".
"11. If any death is caused in connection
with dowry demand, Section 113-B of the Evidence
Act also comes into play. Both these sections, Section
304-B IPC and Section 113-B of the Evidence Act
were inserted by Dowry Prohibition (Amendment)
Act 43 of 1986 with a view to combat the increasing
menace of dowry deaths. Section 113-B 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 before her death such woman has
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 the Penal Code, 1860."
It is imperative to note that both these
sections set out a common point of reference for
establishing guilt of the accused person under
Section 304-B IPC, which is "the woman must have
been 'soon before her death' subjected to cruelty or
harassment 'for or in connection with the demand of
dowry'".
Patna High Court CR. APP (DB) No.1075 of 2018 dt.02-02-2024
21. After having carefully gone through the evidence of
the prosecution's witnesses, we are of the firm view that the
prosecution miserably failed to show at the trial, even on the
standards of preponderance or probabilities, that there was a
demand of dowry, let alone, "soon before the death" of the
deceased. On this ground alone, in our opinion, the impugned
finding of conviction recorded by the trial court requires
interference.
22. Further, we have quoted hereinabove the question
which was put by the trial court while examining the appellants
under Section 313 of the CrPC. It has been rightly pointed out that
the trial court has relied on the report of Forensic Science
Laboratory (Exhibit-5). It was incumbent upon the court to have
questioned the appellants on the point of the finding of the
Forensic Science Laboratory. The same having not been done, the
trial court ought not to have relied upon the report of the FSL. It
has been repeatedly held by the Supreme Court and this Court that
a circumstance not explained to an accused, while being examined
under Section 313 of CrPC, cannot be used by it for recording the
findings of his conviction.
23. For the aforesaid reasons, the impugned judgment of
conviction cannot be sustained. These appeals are allowed.
Patna High Court CR. APP (DB) No.1075 of 2018 dt.02-02-2024
24. Accordingly, the impugned judgment of conviction and
the order of sentence dated 07.07.2018, passed by learned 5th Additional
District and Sessions Judge, Nawada in Sessions Trial No. 673 of 2017,
125 of 2017 arising out of Pakribarawan P.S. Case No. 51 of 2016 are
hereby set aside.
25. The appellant Surendra Ravidas of Criminal Appeal
(DB) No. 1071 of 2018 is on bail. He stands discharged from the
liabilities of bail bonds and sureties, if any.
26. The appellant Rajesh Ravidas of Criminal Appeal (DB)
No. 1075 of 2018 is in jail. Let him be released from jail forthwith, if
not required in any other case.
(Chakradhari Sharan Singh, J)
(Khatim Reza, J)
Suraj/Prabhat-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 05.02.2024.
Transmission Date 05.02.2024.
