Rekha Kumari, J.
1. This is an appeal against the judgment dated 29-8-2002 passed by the 8th Additional Sessions Judge, Gaya in Sessions Trial No. 195 of 2000/80 of 1993 whereby he has convicted appellant-Sudhir Kumar for the offence under Sections 304B, 498A, 201 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act and has sentenced him on 31-8-2002 to undergo imprisonment for life for the offence under Section 304B of the Indian Penal Code, rigorous imprisonment for seven years and three years respectively for the offences under Sections 498A and 201 of the Indian Penal Code and rigorous imprisonment for two years and to pay a fine of Rs. 3000/- for the offence under Section 4 of the Dowry Prohibition Act and in default to undergo rigorous imprisonment for six months. The sentences have been ordered to run concurrently.
2. There were three more accused persons in this case, namely, Tun Singh alias Bal Mukund, Sita Devi and Yasoda Devi. Among them Yasoda Devi died during the pendency of the trial. The other two accused Sita Devi and Tun Singh were acquitted by the impugned judgment.
3. The prosecution case, as stated in the written report dated 19-4-1992 (Ext. 1) filed by the informant-Birendra Kumar of village Bhelwa, P.S. Barachatti District Gaya before the Officer-in-charge of Gurua police station in the district of Gaya is that his sister Prabha Kumari was married to appellant-Sudhir Kumar of village Raghunath Khap, P.S. Gurua District Gaya about three years prior to the above date. At the time of marriage there was a demand of T. V. and Sewing Machine but as the informant was a poor peasant, he could not fulfil the demand, as a result of which his sister was subjected to cruelty and threatened to be divorced. About four months prior to the death, the appellant came to the house of the informant and asked for Rukhsati of his sister on the ground that his (appellant's) mother was ill. They performed the Rukhsati. Some ornaments of his sister, however, were left at his house. About eight days before the occurrence, her husband and mother-in-law tortured her and asked her to bring her ornaments as they had to purchase land by selling the ornaments. His sister was not willing to sell her ornaments, but out of fear of assault she came to his house and returned with all her ornaments. On 19-4-1992 at 12 noon his cousin (son of Phupha) Banwari Mahto of village Deokuli came to his house and informed him that the husband and mother-in-law, Nanad Sita Devi, brother-in-law of her husband (Tun Singh) had killed Prasha Kumari and cremated the dead body. The informant along with his brother Ram Pratap Singh, uncle Sheo Nandan Singh and some persons of village went to village Raghunath Khap at the house of the appellant. Only the mother-in-law of his sister was present in the house and when he enquired about his sister from her, she did not give any answer. Then from the villagers they came to know that the appellant and the other accused had killed his sister and cremated the dead body.
4. On the basis of the written report, formal FIR (Ext. 3) was drawn up under Section 302/201 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act. Thereafter Section 304B and 498A of the Indian Penal Code were added. The police after investigation submitted charge-sheet against the appellant and other accused persons under Section 304B, 498A and 201 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act.
5. The then Additional Sessions Judge VI. Gaya framed charges under Sections 304B, 498A and 201 of the Indian Penal Code against all the four accused persons including the appellant and also framed charge under Section 3/4 of the Dowry Prohibition Act against all the accused persons except the mother-in-law. The appellant and the other co-accused pleaded not guilty to the charges. They denied the allegations levelled against them in their statements under Section 313, Cr. P.C. Their defence, as gathered from the suggestions given to the P.Ws. and the D.Ws. examined is that the deceased died a natural death on account of diarrhoea.
The informant and his uncle had attended the funeral of the deceased and that they have been falsely implicated for the ornaments and share in the property.
6. The prosecution examined seven witnesses to prove its case. They are P.W. 1 Banwari Mahto who had given information to the informant about the death of the deceased. P.W. 2 Sheo Nandan Singh is the uncle of the informant. P.W. 3 Ram Pratap Singh is the brother of the informant. P.W. 4 Birendra Kumar is the informant. P.W. 5 Nanhak Mahto has been tendered for cross-examination. P.W. 6 is Dr. Madan Mohan Pathak, a private medical practitioner before whom the deceased is said to have been taken by one Sheo Sharan Mahto where during treatment she was found dead. P.W. 7 Kauleshwar Prasad, an Advocate Clerk is a formal witness and has proved the sanction of the District Magistrate (Exts. 2 & 2/1) for prosecution under Section 3/4 of the Dowry Prohibition Act, formal FIR (Ext. 3) and the case diary (Ext. 4).
7. The appellant along with other accused also examined four witnesses in support of their defence, D.W. 1 is Ramesh Chandra Singh, D.W. 2 is Pramod Kumar, D.W. 3 is Jagdish Prasad Singh and D.W. 4 is Bipin Kumar. They all, except D.W. 3, belong to village Raghunath Khap. D.W. 3 belongs to village Deokali.
8. The learned Sessions Judge after considering the evidence on record convicted only the appellant and sentenced him as mentioned above.
9. The point for determination before this Court is whether the learned Sessions Court was justified in convicting the appellant for the above offences and the sentences passed are proper.
10. Learned Counsel for the appellant submitted that there is no sufficient evidence that the appellant or any co-accused demanded any dowry and the death of the deceased can in no manner be held to be a dowry death. He further submitted that the evidence would suggest that the deceased died a natural death and not unnatural death. The evidence also is not at all sufficient to prove that soon before her death the deceased was subjected to cruelty or harassment for or in connection with any demand for dowry and this being so, the appellant cannot be held guilty under Section 304B of the Indian Penal Code. His submission also is that the evidence adduced by the prosecution is also not sufficient to prove that the dead body was disposed of hurriedly in order to cause disappearance of evidence with the intention of screening the appellant from legal punishment. The appellant, hence, cannot also be held liable under Section 201 of the Indian Penal Code.
11. As regards the offence of dowry death punishable under Section 304B of the Indian Penal Code, it is well settled that in order to seek conviction under this section, the prosecution is obliged to prove that (a) death of a woman was caused by burn or bodily injury or had occurred otherwise than in normal circumstances, (b) such death should have occurred within seven years of her marriage, (c) the deceased was subjected to cruelty or harassment in connection with demand of dowry, and (d) to such cruelty or harassment the deceased should have been subjected soon before her death. As and when the aforesaid circumstances are established, the presumption of dowry death shall be drawn against the accused under Section 113B of the Evidence Act.
12. In this case from the evidence of P.W. 4 the informant, it appears that he has stated that his sister Prabha Kumari (deceased) was married to appellant-Sudhir Kumar about three years before her death on 18-4-1992. P.Ws. 1 and 3 have also stated that she was married to the appellant. The appellant in his statement under Section 313, Cr. P.C. has admitted that he was married to the deceased within three years of her death which took place on 18-4-1992.
13. Therefore, it is proved that the wife of the appellant (Prabha Kumari) had died within seven years of her marriage.
14. The evidence of P.W. 1 is that on 19-4-1992 he was going to Gurua Bazar and on the way when he reached Raghunath Khap which is 2-3 Kms. away from his village, in the evening he came to know that the appellant along with other co-accused had killed his (appellant's) wife and was cremating the dead body to the west of the village. His evidence also is that he had gone to the house of the informant and gave this information. P.W. 4 has stated that on 19-4-1992 Banwari Mahto informed him that the appellant and other accused persons had committed the murder of his sister and had cremated the dead body and on this information he along with his other brother Ram Pratap Singh (P.W. 3), uncle Sheo Nandan Singh (P.W. 2) Banwari Mahto and some villagers reached the Sasural of his sister and there they found only mother of the appellant and on enquiry she did not say anything regarding the whereabout of his sister and from the villagers he learnt that his sister had been killed and the dead body cremated and then he filed the written statement to the Officer-in-charge. P.Ws. 2 and 3 have corroborated the above evidence of the informant.
15. The evidence of the above P.Ws. hence, show that the informant had received information of the death of the deceased on 19-4-1992 and on that date when P.Ws. 2 to 4 went to the house of the appellant, the deceased was not there and except the mother-in-law of the deceased, all were absent from the house and the mother-in-law was not ready to disclose about the death of the deceased.
16. Though there appears some discrepancy as to on which date i.e. whether on 18-4-1992 or on 19-4-1992 Banwari Mahto (P.W. 1) was going to Gurua Bazar and knew about the death of the deceased but the evidence of the witnesses P.Ws. 2 to 4 is clear that on 19-4-1992 they had received the news of the death from Banwari Mahto and on that date they went to the house of the appellant where they did not find the deceased and only the mother-in-law was there who suppressed information about the death of the deceased.
17. In this case no post-mortem report of the deceased was conducted by any doctor as the dead body was cremated prior to the lodging of the FIR. But one private medical practitioner Dr. Madan Mohan Pathak (P.W. 6) has been examined. He is an Ayurvedic doctor and his evidence is that in his clinic on 18-4-1992 at about 3.00 p. m. Prabha Devi of village Reghunath Knap was brought for treatment and during her treatment he found her dead and he handed over the dead body to the person accompanying her. He has, of course, stated that the person accompanying the deceased had told him that she was suffering from Diarrhoea, but his evidence shows that he did not find any thing otherwise in the clothes of the patient. Therefore, from his evidence it is not established that the deceased died of Diarrhoea. The witness has again stated that he has mentioned in the report which was handed over to the police during investigation that the patient died of heart failure. But he has not given any reason for heart failure. He had also not conducted the postmortem examination. So, this evidence is not sufficient to show the cause of death, but as it is not denied by the accused persons that the deceased was taken to the doctor where she was found dead, his evidence shows that the deceased died on 18-4-1992 at about 3.00 p.m.
18. The appellant in his statement under Section 313, Cr. P.C. has denied that the informant and others had gone to his house on 19-4-1992. He has also denied that they killed the deceased. The appellant has also examined D.Ws. 1 to 4, among whom D.W. 1 has stated that Prabha Devi had abdominal disease and she was under the treatment of Dr. Madan Mohan Pathak (P.W. 6) and that Pramod Kumar (D.W. 2) had gone to village Deokuli and Bipin (D.W. 4) has gone to village Bhelwa to give information about the death and on the date of death Banwari Mahto from village Deokuli and the informant and others from village Bhelwa came and participated in the funeral of the deceased. D.W. 2 had stated that he had gone to give information about the death to Banwari Mahto (P.W. 1) and that Prabha Kumari died of abdominal disease and she was under the treatment of Dr. Madan Mohan Pathak. His evidence also is that in presence of Banwari Mehto and others the deceased was cremated in the same evening. D.W. 3 has stated that Pramod Kumar had given information about the death of the deceased to Banwari Mahto in his presence. D.W. 4 has stated that on 18-4-1992 he had gone to the village of the informant to give information about the death and that Birendra Singh (informant) and his uncle came along with him and took part in the funeral. He has also stated that the deceased was suffering from abdominal disease and died due to bursting of appendix and she was under the treatment of Dr. Madan Mohan Pathak and before that she was under the treatment of Dr. Krishna Kumar.
19. But though according to the evidence of these witnesses the deceased died of Diarrhoea, the appellant has not stated anywhere in his statement under Section 313, Cr. P.C. that how she died. Dr. Madan Mohan Pathak in his evidence also has not stated that the deceased died of diarrhoea. No prescription of any doctor has also been produced to show that the deceased was suffering from any disease from before. Therefore, it cannot be said that the deceased died a natural death on account of diarrhoea or other abdominal disease and this plea of the appellant appears to be false.
20. The appellant in his statement under Section 313, Cr. P. C. has also not whispered a word that he had given any information either to Banwari Mahto or to the informant about the death. No suggestion in this regard had also been given to any P.W. Therefore, the evidence of the D.Ws. that information of death was sent to Banwari Mahto and the informant and they attended the funeral appears to be an afterthought and cannot be believed.
21. Then according to the evidence of D.Ws. 1 to 4 after cremation, on the same night, the informant demanded ornaments and share of his sister in the property. This plea also cannot be believed. It has already been shown that no information was given about the death of the deceased and the informant did not go to the Sasural of his sister on that date. It is also not believable that when even Sharadh ceremony had not been performed, the informant would demand the ornaments and also the share when his sister had no share in the properties. So, this plea is also not fit to be accepted.
22. Thus, though the prosecution has not been able to establish as to how exactly the deceased died, the evidence adduced shows that Prabha Devi was brought to the clinic of Dr. Madan Mohan Pathak (P.W. 6) on 18-4-1992 almost dead and during treatment she died and there was no apparent cause of death. The evidence further shows that no information of death of the deceased was given to the informant and the dead body was cremated hurriedly and when on the next day the informant and others went to the house of the appellant, all inmates were found absconding and the mother-in-law of the deceased who only was in the house, evaded disclosing about the whereabouts of the deceased.
23. These facts and circumstances clearly go to show that the deceased died in a suspicious circumstance. Apart from this the deceased had died in the house of the appellant. The appellant, therefore, had special means of knowledge as to how the deceased actually died and what was the cause of her death, but I have already shown that he has taken a false defence that the deceased died of abdominal disease. This false explanation provided a missing link and completes the chain of circumstance to hold that the death of the deceased had occurred otherwise than in normal circumstance.
24. The prosecution, therefore, has also established that the death of the deceased was not normal or caused by any accident; rather it had occurred otherwise than in normal circumstance.
25. The case of the prosecution in the FIR is that at the time of marriage there was a demand of T. V. and sewing machine and for that the deceased used to be repeatedly subjected to cruelty. But neither the informant nor his own brother (P.W. 3) nor his uncle (P.W. 2) has stated that at the time of marriage there was any such demand. P.W. 1, of course, has stated that as at the time of marriage sewing machine or wrist watch was not given, the deceased was done to death. But his evidence is not specific that in his presence any such demand was made at the time of marriage. So, there is no evidence that actually any demand of dowry in the shape of sewing machine and T.V. was made by the appellant or his family members at the time of marriage.
26. P.W. 4, the informant, however, has stated that in the Sasural of his sister, the appellant and her in-laws used to demand T.V. and sewing machine and for that they used to torture her. Though the evidence of this witness does not show that he is an eyewitness to the demand and torture, he is the brother of the deceased and his evidence shows that eight months prior to the death, he had brought her to his house and she lived there for four months at that time. So, it can be presumed that the witness knew about the demand and torture from her.
27. P.W. 3 has stated that his sister (deceased) had told them when she had come eight days before the occurrence to his house that her in-laws used to torture her for non-fulfilment of demand of sewing machine and T.V.
28. P.W. 2 has also stated that the appellant and other co-accused had been demanding sewing machine and T.V. and for that reason they killed her. He has stated that when the deceased came to her Naihar 5-6 days prior to the date of occurrence, they came to know about this from her.
29. Therefore, the evidence of P.Ws. 2, 3 and 4 shows that the appellant and others used to demand T.V. and sewing machine and for non-fulfilment of that they used to torture her. The attention of P.W. 2, indeed, has been drawn towards his statement before the I.O. to show that he did not make the above statement before the police. The evidence of P.W. 1 shows that the I.O. is dead. It appears, hence, that the case diary of the case has been proved and marked Ext. 4. A perusal of the case diary shows that P.W. 2 did not make the above statement before the I.O. But even then, the evidence of P.W. 3 coupled with the evidence of P.W. 4 is sufficient to prove that the deceased was being tortured for non-fulfilment of demand of T.V. and sewing machine as dowry.
30. D.W. 1 who claims to be a neighbour of the appellant has stated that to his knowledge the appellant never demanded any T.V. or sewing machine. D.W. 2 who belongs to the village of the appellant has also deposed to the same effect. D.W. 4 has also stated that there was good relationship between the appellant and the deceased and the appellant never demanded any dowry.
31. But though the above witnesses have denied demand of any dowry and torture, they are not the inmates of the house of the appellant, and dowry is not demanded or cruelty committed, publicly. Therefore, on the basis of the evidence of the above D.Ws. it cannot be said that no dowry was demanded and that the deceased was not tortured for dowry.
32. It may also be mentioned here that P.W. 3 in his cross-examination has stated that the family of the appellant was well-to-do and that he was happy on seeing his sister. But from these also it cannot be inferred in the face of the above evidence of the P.Ws. that there was no demand of dowry and the deceased was not subjected to cruelty or harassment for dowry.
33. The question, however, is whether the deceased was subjected to cruelty or harassment in connection with the demand of dowry 'soon before her death.'
34. The expression 'soon before her death' has been interpreted by the Supreme Court in the cases of Kann Raj v. State of Punjab (three Judges Bench), (2000) 5 SCC 207 : 2000 Cri LJ 2993, Satvir Singh v. State of Punjab, (2001) 8 SCC 633 : (2001) Cri LJ 4625 and in various other cases, and according to these decisions the expression indicates that there must be live link, perceptible nexus been the infliction of dowry related harassment and the cruelty on the woman and death and that persistent cruelty, harassment or demand of dowry would be deemed to be 'soon before the death' if any other intervening circumstance showing non-existence of such treatment is not brought on record.
35. In this case the evidence of P.W. 4 is that after marriage his sister was in her Sasural and there the appellant and others used to torture her for T.V. and sewing machine. About eight month before her death, he brought her to his house and before four months of her death the appellant came to his house for taking his sister to his house on the plea of illness of his mother. After great persuasion by the appellant, he allowed him to take her to his house. He has further stated that the in-laws of his sister wanted to purchase land by selling the ornaments of his sister but his sister was not willing to part with them and so she had left her ornaments with him, but this time she was under the pressure of her husband to take the ornaments with her. His evidence further is that when she went to her Sasural, she was again subjected to cruelty for T.V. and sewing machine and also about 8 days before the death on account of torture of the in-laws she came to his house and took away the ornaments and that on 19-4-1992 he learnt that the appellant and others had killed her and cremated the dead body.
36. The evidence of P.W. 3 also is that he had learnt from his sister (deceased) that her in-laws used to demand a sewing machine and a T.V. and that about 8 days prior to the occurrence, his sister had come to their house when she told them about it. His evidence also is that she had come to take ornaments and after taking ornaments she went to her Sasural. He has also stated that the in-laws had demanded the ornaments with a views to sell them for purchasing land. He has further stated that her husband and others used to assault her and that for non supply of the above articles she was done to death and on 19-4-1992 he learnt that his sister was done to death on 18-4-1992 by poisoning.
37. Therefore, from the above evidence of the two witnesses taken together, it is clear that there was persistent demand of T.V. and sewing machine and for that the deceased was being tortured. The evidence of these witnesses also show that the appellant and others also wanted to purchase and by seeing the ornaments of the deceased which the deceased did not want to part with, and for that she was harassed and only eight days prior to her death, she was compelled to bring back the ornaments from her brother's place. These evidence, therefore, clearly show a live link, perceptible nexus between the torture, harassment on account of non-fulfilment of demand of T. V. and sewing machine as well as refusal to part with the ornaments and the death.
38. It may, however, be mentioned here that in the charges framed in this case there is no mention of demand of ornaments or torture for the refusal to part with it by the deceased. But it is provided in Section 215, Cr. P.C. that no error, omission to state the offence or particulars required to be stated in the charge, shall be regarded as material unless the accused was, in fact, misled by such error or omission and it has occasioned a failure of justice. In this case, the case of the prosecution in the FIR and in the evidence of the P.Ws. is that there was demand of ornaments by the appellant and refusal by the deceased and harassment on that count. So, no prejudice appears to have been caused to the appellant on account of the omission of stating about the demand of ornaments and refusal to part with it.
39. In this connection, however, it is worthwhile to refer to a decision of the Supreme Court in the case of K. Prema S. Rao v. Yadla Sriniwasa Rao (2003) 1 SCC 217 : 2003 Cri LJ 69. In that case the father of the deceased had given some customary gifts at the time of marriage, some land and a house site and 3-4 months after the marriage the husband started demanding that the deceased should execute a deed transferring land and house site to him, and the wife ultimately committed suicide. The three Judges Bench of Supreme Court held that on facts, the offence of dowry death is not made out as there is no evidence on record to indicate that the transfer had been demanded as dowry.
40. In this case also there is no evidence that the ornaments which were given to the deceased at the time of marriage, were demanded as dowry. So, in view of the above decision, on the basis of the demand of ornaments it cannot, be said that any offence of dowry death is made out against the appellant.
41. However, from the evidence of the informant and his brother, as already mentioned, there is sufficient evidence that there was persistent demand of T.V. and sewing machine and torture for that, and even 8 days before her death, the deceased reported to them that she was being harassed also for T.V. and sewing machine. So, though the death appears to be a cumulative effect of the demand of T.V. sewing machine and also ornaments, but even if the demand of ornaments is left out, the torture on account of non-fulfilment of demand of T.V. and sewing machine in this case also provides nexus with the death of the deceased and the same satisfies the requirement of the ingredient that 'soon before her death', the deceased was tortured for or in connection with the demand of dowry.
42. Thus, I find that the prosecution has been able to prove all the circumstances as mentioned above, required to be proved for an offence under Section 304B of the Indian Penal Code and so under Section 113B of the Evidence Act a presumption has to be drawn that the appellant committed the offence of dowry death punishable under Section 304B of the Indian Penal Code.
43. In view of the evidence discussed above, it is also evident that the prosecution has been able to prove that the appellant had demanded T.V. and sewing machine as dowry and for that he treated the deceased with cruelty. The appellant, hence, is also liable for the offences under Section 498A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act.
44. Then the evidence of P.W. 1 Banwari Mahto is that when he was going to Gurua market, on the way at Raghunath Khap he learnt that the appellant had killed his wife and was cremating the dead body to the west of the village and he went there and saw the appellant and others cremating the dead body and when he enquired from them as to whose dead body it was, the appellant abused him and ran to assault him. He has further stated that it was evening time and the date was 19-4-1992. His evidence also is that in the same night he gave information to the informant about the death.
45. There is, of course, no other witness to corroborate the above evidence, and there is discrepancy as to on which date, he had gone to the P.O. village as according to him the cremation took place on 19-4-1992 in the evening', when the prosecution and the evidence of the D.Ws. is that it took place on 18-4-1992 and the evidence of the witness is that he gave information to the informant on 19-4-1992 in the night when the prosecution case is that he had given information on 19-4-1992 at 12 noon. But in spite of these discrepancies, there is no reason to disbelieve that on the date of death, he had gone to the P.O. village and learnt about the death of the deceased and as the deceased was related to him, it was obvious that he went to the place where the dead body was being cremated. This evidence finds corroboration from the evidence of the informant and others as according to them, the witness had informed them about the death of the deceased and the disposal of the dead body.
46. The evidence of the doctor is also clear that the death of the deceased had occurred on 18-4-1992 at 3.00 p.m. The D.Ws. have also stated that on the same night the dead body was cremated and according to D.W. 1 the cremation took place at 7-8 p.m. on 18-4-1992.
47. The dead body, therefore, was cremated quite hurriedly and it has already been shown that no information of death was given to the informant by the appellant or his family members.
48. So, when without giving any information of death to the informant the dead body was hurriedly cremated and when Banwari Mahto went to the burning place, he was abused and threatened, it can also be inferred that the appellant intentionally, in order to screen himself from the legal punishment for causing the death of the deceased, hurriedly caused disappearance of the evidence by cremating the dead body. The appellant hence is also liable for offence under Section 201 of the Indian Penal Code.
49. The learned trial Court, thus, was justified in convicting the appellant for the offences under Sections 304B, 498A, 201 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act.
50. As regards the sentence, however, it appears that the learned trial Court has sentenced the appellant to undergo rigorous imprisonment for seven years under Section 498A of the Indian Penal Code when the maximum punishment prescribed is three years. Therefore, the sentence for the offence under Section 498A of the Indian Penal Code is modified and reduced to the rigorous imprisonment for three years. Similarly, in view of the facts and circumstances of the case the appellant is sentenced to undergo rigorous imprisonment for ten years instead of life imprisonment for the offence under Section 304B of the Indian Penal Code. The sentences with regard to other offences need no interference and the substantive sentences would run concurrently.
Accordingly, with the above modification in sentence, this appeal is dismissed.
Chandramauli Kumar Prasad, J.
51. I agree.