Bal Krishna Jha, J.
1. This appeal is directed against the judgment and order of the then learned Additional Sessions Judge-I, Darbhanga passed on 23rd/24th of May, 2000 in Sessions Trial No. 141 of 1993.
2. The learned trial Judge found all the four appellants guilty for the offences under Section 304B of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. The appellant, Jhalia Devi, was sentenced to R.I, for seven years and rest three appellants, Ashok Sah, Deo Narayan Sah and Pradeep Sah, were sentenced to R.I. for life under Section 304B of the Indian Penal Code. No separate sentence was passed under Section 4 of the Dowry Prohibition Act.
All these four appellants were put on trial along with the accused, Raju Sah and Poonam Kumar, for the charges under Section 304B of the I.PC. and Section 4 of the Dowry Prohibition Act. In course of trial, the case of the accused, Raju Sah and Poonam Kumar, was separated on the ground of minority and was sent down to the Juvenile Court, the Court of ACJM, Darbhanga, for disposal.
3. The Fardbeyan was lodged by the informant, Ram Lakhan Prasad Bihari, P.W. 5 of Village-Gaighat, PS. Alam Nagar, District Patna on 15.10.1991 at 9 p.m. at Darbhanga Medical College Hospital, Darbhanga. In his Fardbeyan the informant stated that his daughter, Mira Devi, was married about 5 years ago with the accused, Ashok Sah, son of Deo Narayan Sah of Mohalla Hasan Chak, P.S, Nagar, District Darbhanga. After marriage she visited her Naihar at Gaighat and Sasural at Darbhanga several times. On the last Sawan Purnima when Mira Devi was taken by her husband Ashok Sah from Gaighat to Hasan Chak, Darbhanga, all the accused persons began to ill-treat her. They used to demand scooter and cash Rs. 10,000/- in dowry and assaulted her for not meeting their dowry demand. The accused, Ashok Sah, was also trying to take all her ornaments. The informant further stated that about 15 days before the occurrence his Samdhi-accused, Deo Narayan Sah, came to his house at Gaighat, Patna and informed him about the quarrelling in between the couple and requested him to admonish them. On receipt of information he went to Mohalla Hasan Chak and a panchayatee was convenced in presence of Bhola Mahto, P.W. 5, Rajendra Sah, Suraj Sah, P.W. 4 and many others. The accused, Ashok Sah and Deo Narayan Sah, gave written undertaking before the Panches that they would not subject Mira to any sort of cruelty and thereafter he returned back to his house. He further stated that on 15.10.1991 at 2 p.m. he was telephonically informed about the burning of Mira Devi by the accused persons whereupon he along with his wife and others went to Mohalla Hasan Chak, Darbhanga. He learnt from Shayamsunder Mandal, Ram Sundar and many others of Hassan Chak Mohalla, Darbhanga that all the six accused persons firstly assaulted his daughter Mira Devi and then set her on fire after shrinkling kerosene oil on her body. He further learnt that Mira was seriously injured and was under treatment at Darbhanga Medical College Hospital and her condition was very serious. Thereafter he went to Darbhanga Medical College Hospital and found her condition very critical. Her both legs, hands, breasts, lips, cheeks and other part of the body were found burnt. The informant alleged that Mira was burnt to death by the accused persons because of non-fulfilment of their dowry demand and she died leaving behind two male child.
4. The S.I., Ram Nath Singh of Town P.S., Darbhanga, recorded the Fardbeyan of the informant, Ram Lakhan Prasad Bihari on 15.10.1999 at 9 p.m. at Darbhanga Medical College Hospital. On the basis of his Fardbeyan a formal FIR was drawn up and town P.S. Case No. 167 of 1991 was instituted against the six accused persons, namely, Ashok Sah, Jhalia Devi, Deo Narayan Sah, Poonam Kumar, Pradip Sah and Raju Sah, under Sections 324/307/34 of the I.P.C. and Sections 3/4 of the Dowry Prohibition Act. After the death of Mira Devi, Section 304B of the I.P.C. was added in this case. On completion of investigation police charge-sheeted all the six accused persons for trial under Section 304B of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act. All the accused persons were put on trial for the charges under Section 304B of the Indian Penal Code and Section 4 of the Dowry Prohibition Act which ultimately ended in the manner indicated above.
5. The defence of the appellants is that they are quite innocent and have been falsely implicated in this case. Their specific defence is that, in fact, Mira Devi was married with the accused, Ashok Sah, more than 10 years before the occurrence and she died of accidental fire due to bursting of the stove.
6. The case in hand is a dowry death case and such type of cases are committed inside the Sasural house. Independent or direct evidence is hardly available to the prosecution. At the same time the criminal judicial system demands that offenders of such cases should be punished under the Penal Provisions intended to combat such crimes.
To curb the increasing number of dowry killing Section 304B of the Indian Penal Code was introduced which provides that '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. The same presumption has been raised under Section 113B of the Indian Evidence Act. Accordingly to this section '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 has caused the dowry death.'
7. In the light of enunciation of law above, now, I advert to evaluate the evidence on record.
8. In the eventual trial, the prosecution examined altogether 9 witnesses to substantiate the charges against the accused persons. Out of them P.W. 1, Arun Kumar Bhagat, P.W. 2, Awadhesh Prasad Srivastava and P.W. 9, Rajendra Prasad, have denied any knowledge about the occurrence and have been declared hostile by the prosecution but it is established from their evidence that the death of Mira took place within 7 years of her marriage. P.W. 5, Bhola Mahto, has been tendered for cross-examination but nothing material appeared in his evidence. P.W. 7 is Dr. Akhauri Rabindra Kishore, who conducted autopsy on the dead body of the deceased Mira Devi. P.W. 8, Brajendra Kumar Pandey is a Judicial Magistrate, who recorded the dying declaration of Mira Devi. P.W. 3, Nageshwar Prasad, P.W. 4, Suraj Sail and P.W. 6, Ram Lakhan Prasad Bihari, the informant, are the witnesses on the point of occurrence. The Investigating Officer has not been examined in this case.
9. The evidence of Dr. Akhauri Rabindra Kishore, P.W. 7 is that on 16.10.1991 at 12.30 p.m. he performed post-mortem examination on the dead body of Mira Devi and found the following ante-mortem injuries on her body:
Extensive dermo epidermal burn was present extending from face to ankle of both lower limbs. The burn area also included abdomen, chest, front and back of both upper and lower limbs and perineum. The burn areas were inflamed red and with inflamatory charges. The trachea and both lungs were found congested. Black carbon particles were seen in the trachea. Lungs exuded, dark frothy blood when cut. Smell of kerosene oil was found in the scalp, hair and saaya (Petticot) of the dead body.
In his opinion the injury was grievous and dangerous to life in ordinary course of nature and caused by flame of fire. The death was due to shock. The time elapsed between death and post-mortem examination held was found within 4 to 12 hours. He proved the post-mortem report (Ext. No. 4).
Thus, according to the medical evidence, the deceased Mira Devi had died due to burn injuries found on her dead body and it is consistent with the case of the prosecution.
10. As stated above, there is no direct evidence to establish the case of the prosecution. The prosecution has mainly relied upon the evidence of P.W. 3, Nageshwar Prasad, P.W. 4, Suraj Sah and P.W. 6, Ram Lakhan Prasad Bihari, the informant besides the dying declaration recorded by the Judicial Magistrate, Brajendra Kumar Pandey, P.W. 8.
P.W. 3, Nageshwar Prasad, gave hearsay statement on the point of demand of dowry, panchayatee, execution of panchanama and bonds thereof by the accused, torture and burning of Mira Devi by the accused persons. His evidence is that Mira Devi was married with the accused, Ashok Sah, about nine years ago (from the date of his deposition in Court) and about 4 years ago, he learnt from his nephew, Suraj Sah, P.W. 4 that the accused persons burnt Mira Devi for non-fulfilment of their demand for a scooter and cash in dowry. On this information he went at the house of the accused and found Mira Devi lying with excessive burn injuries on her body. Smell of kerosene oil was coming out from her body. He has further stated that thereafter he with the help of others took Mira Devi to Government Hospital for treatment in course of which she died. P.W. 4, Suraj Sah, has also stated that the death of Mira Devi occurred after 5 years of marriage. He had attended her marriage. His further evidence is that Mira Devi was subjected to cruelty for want of dowry by all the accused persons and for which there was a panchayatee on 2.9.1991. He was also one of the Panches. The accused, Ashok Sah and Deo Narayan Sah were held guilty by the Panches and they executed bonds. A panchanama was also prepared and was signed by him and other Panches. He has proved the panchanama (Ext. No. 1) and the bonds (Ex. Nos. 2 and 2/1). This witness has denied his knowledge about the cause of death of Mira Devi. P.W. 6, Ram Lakhan Prasad Bihari is the informant. His evidence is that his daughter, Mira Devi, was married with the accused, Ashok Sah about 5 years ago and after marriage she came to her naihar and went to Sasural several times. Just after the marriage the accused persons started making dowry demand of scooter and cash of Rs. 10,000/-. He also learnt about her ill-treatment and torture by the accused persons for meeting their demands. He has further stated that a panchayatee was held on 2.9.1991 and in presence of the Panches both the accused, Ashok Sah and Deo Narayan Sah, sought unconditional apology. A panchanama was prepared and bonds were executed by the accused, Ashok Sah and Deo Narayana Sah. After panchayatee his daughter Mira Devi went to her Sasural and started living there but again she was being subjected to cruelty by them. The accused, Ashok Sah, also took away all her ornaments. On 15.10.1991 he was telephonically informed about the burning of his daughter, Mira Devi, by the accused persons. On receipt of this information, he along with his wife, Krishna Devi, went at the house of the accused and learnt from the Mohalla people that Mira Devi was burnt by the accused after shrinkling kerosene oil, on her body. He also learnt that she was removed to hospital for treatment with serious burn injuries whereupon he went to the hospital he came to know that the statement of Mira Devi had been recorded by a Magistrate. Mira Devi died at about 1 a.m. in the hospital. He has further stated that before her death his Fardbeyan was recorded by the police in the hospital at 9 p.m. and he put his signature (Ext. No. 3/1).
11. P.W. 8, Brajendra Kumar Pandey is a Judicial Magistrate who recorded the dying declaration of Mira Devi. His evidence is that on 15.10.1991 he was posted as such a Darbhanga and on the same day on the requisition of S.I. of police he received direction of the CJM, Darbhanga to record the dying declaration of Mira Devi. Thereafter he went to D.M.C.H., Lahariasarai on the same day, i.e., 15.10.1991 at 4 p.m. and found her lying on Bed No. 19 of Female Surgical Ward (ward of Dr. P.S.K. Sahai). Mira Devi was identified by Dr. Radha Rani and she also informed him that Mira Devi was conscious and was in a position to make statement. He has further stated that he also found her in a position to give statement and then he recorded the dying declaration of Mira Devi in presence of Dr. Radha Rani. In her dying declaration, Mira Devi, stated that her husband and mother-in-law always used to torture her but she did not raise any complaint against her father-in-law. This witness also found her burnt. He proved the dying declaration (Ext. No. 5). The dying declaration was also attested by Dr. Radha Rani (Ext. No. 5/1). It appears from her attestation in dying declaration that no thumb impression of the deceased, Mira Devi, was taken since the same could not be done because of burn injury on her body.
12. The learned Counsel for the appellants submitted that the Trial Court wrongly placed reliance upon the so-called dying declaration of the deceased (Ext. No. 5) in which Mira Devi stated nothing about the cause of the death and the manner of sustaining burn injury.
Admittedly, in the dying declaration Mira Devi has whispered not a single word about the cause of her death and the manner in which she sustained burn injury but the case in hand not solely rests on the dying declaration. The witness count is also available.
The primary requirements for finding the appellants guilty for the offence under Section 304B of the I.P.C. are that the death of the deceased was caused by burns within 7 years of her marriage and that soon before her death she was subjected to cruelty or harassment by the appellants for or in connection with any demand for dowry.
The first requirement is established from the evidence in this case that the death of Mira Devi took place within 7 years of her marriage though the exact date of her marriage has not come in evidence. The second requirement that the death was caused by burns is a factum which has not been disputed even by the appellants themselves. This is also established from the evidence of P.W. 3, Nageshwar Prasad, P.W. 6 Ram Lakhan Prasad Bihari, P.W. 7, Dr. Akhauri Rabindra Kishore and the dying declaration of the deceased (Ext. No. 5). Further, the evidence of the informant, P.W. 6, Ram Lakhan Prasad Bihari coupled with the panchanama (Ext. No. 1), bonds executed by the accused, Ashok Sah and Deo Narayan Sah (Ext. No. 5) sufficiently indicate that after the marriage there was dowry demand of scooter and cash of Rs. 10,000/- from the accused side and she was subjected to torture by them in connection with the dowry demand. Thus, the third requirement that soon before her death Mira Devi was subjected to cruelty or harassment for or in connection with the demand for dowry is also established. The prosecution has proved all the three circumstances required for proving the offence of dowry death by the appellants. In such a situation, the prosecution under Section 113B of the Evidence Act will operate which is rebuttable by the defence but no rebuttable evidence has come from the defence side. Therefore, the conclusion is that the offence of dowry death has been proved by the prosecution beyond all reasonable doubts.
In her dying declaration (Ext. No. 5), Mira Devi, has categorically stated that she was ill-treated by her husband and mother-in-law but not by her father-in-law. She has raised on complaint against her father-in-law, the accused, Deo Narayan Sah and devar, Pradip Sah, so both of them are given benefit of doubt.
13. In the result, this appeal is allowed partly. The conviction of the appellants, Ashok Sah and Jhalia Devi and sentences imposed upon them are hereby maintained. The appellant, Ashok Sah, is in custody and the appellant. Jhalia Devi, is on bail. Her ball bond is cancelled with a direction to surrender within two months failing which the Court below will take all steps to secure her apprehension in this case to serve out the imposed sentence.
The conviction of the appellants, Deo Narayan Sah and Pradip Sah and the sentences imposed upon them are hereby set aside and they are acquitted of the charges. Both of them are on bail, so they are discharged from the liabilities of their executed bail bonds.
Aftab Alam, J.
14. I agree.