Full Judgment
Vikramaditya Prasad, J.
1. This appeal, against conviction and sentence under Section 304B IPC held on trial, has been preferred by the appellants Binod Paswan and Sugia Devi, husband and mother-in-law respectively of the deceased, Parwati. The appellant Binod Paswan stands sentenced to undergo R.I. for 10 years Sugia Devi for 7 years R.I.
2. The undisputed facts in this case are (i) the deceased Parwati was married to Binod Paswan (appellant No. 1), (ii) the death of Parwati occurred within three years of the marriage, (iii) the death of Parwati occurred in suspicious circumstances because her dead-body was recovered from a well and (iv) no external injury was found on the body and the viscera report was not obtained; consequently the Doctor could not say the cause of her death, but the left chamber of her lungs was found empty and therefore, the learned trial Court held that it was not a case of simple drowning.
3. The two findings of the learned trial Court that (1) soon before the death, the victim lady was subjected to cruelty by the convicts and (2) the said cruelty or harassment was in connection with the demand of dowry have been challenged in this appeal and consequently, the presumption drawn under Section 113B of the Evidence Act by the learned trial Court has also been assailed.
4. With regard to Cruelty & Demand of Dowry :
In the FIR it has been stated that it was Binod Paswan the husband, who had gone to his in-laws' house and informed that as he had a quarrel with his wife (deceased) and he had assaulted her, his wife Parwati Devi had filed away and it is not known where she had gone and on this information, the informant and others proceeded to find out the victim girl and subsequently, dead-body was recovered. In the FIR it is also stated that from the villagers, the informant and others came to know that in the night of 23-12-1991, the husband, father-in-law, Ugan Paswan, and mother-in-law had quarrel with her and they also had assaulted and therefore, this occurrence had taken place. Earlier, during Deshera Binod Paswan had demanded Rs. 5000/- and the informant was unable to pay it; therefore, the appellant, Binod Paswan, had threatened of dire consequence and for this money, they had assaulted Parwati. The claim made in the FIR was that for non-payment of dowry, the sister of the informant was mentally and physically torured and that had led to this occurrence.
5. The perpetuation of mental and physical cruelty can be known to the villagers, where the victim girl resided along with her in-laws and therefore, the evidence of the people of that village would become relevant, (ii) the victim girl before her death in such a situation, when the said cruelty was being perpetuated, is likely to bring it to the notice of her parents and other agnatic relations by various means, (iii) sometimes the father, brother and other agnatic relations themselves may be the eye-witnesses of such cruelty and (iv) when such cruelty is brought to the notice of the parents etc. it is expected that the matter is taken up before certain authorities or some Panchayati is done so that such a cruelty is stopped, but in some cases, it is also found that for the reason of family privacy, such matters are not brought to public by the parents etc. These are the sources of evidence on the point of cruelty for demand of dowry.
6. Though in the FIR, Ext. 2, it has been stated that the informant and others came to know from the appellants' villagers that in night of 23-12-1991, victim's in-laws had assaulted and quarreled with her, but even in the FIR the name of not a single villager has been given and none of the prosecution witnesses could say as to who was the villager who had informed them of this assault and quarrel. Thus, the first type of evidence that could be there is completely wanting in this case.
There is no evidence either in the depositions of the father, PW 7, brother PW 13 or any other relative of the victim girl that it was the victim girl, who used to say or had impressed them that she was put to mental or physical tortue for demand of dowry. So, pre-death communication is also not there. In the case of Sunil Bajaj v. State of M.P. reported in 2001 SAR (Cr.) 856, there was a letter written by the victim girl to her parents and that was taken by the trial Court to be a communication providing the torture. The Apex Court disbelieved it. In this case, there is no such evidence, what to say of letter, even on oral communication by the victim girl to her parents and others with regard to the demand of dowry and torture therefore. There is no evidence of any witness that in his face or in his presence, the victim was at any time assaulted by the appellants.
7. The only evidence is that the appellant Binod Paswan himself said that he had a quarrel with and assaulted his wife and the wife had filed away and her whereabouts was unknown. The question is whether this is a confession in face of the denial by the appellant Binod Paswan in his statement under Section 313 Cr. P.C. that he had ever made such a statement to the informant. There is a distance of about 12 Kms. between the village of the informant and that of the appellants and there is consistent evidence that the appellant Binod Paswan had gone to the house of the informant and at that time, there were the father of the victim girl, the informant and one Sakhi Paswan and in their presence, the appellant Binod Paswan has given the aforesaid statement. Unless some information had been received about the missing of the girl, the question of the informant's rushing to the village of the appellants in search qf the victim girl could not arise. Therefore, it appears very probable and convincing that it was the appellant, Binod Paswan, who had gone to his in-laws' house and given the information of missing of his wife and assault upon her. The witnesses had corroborated one another on his point that the appellant Binod Paswan stated about (a) quarrelling with his wife, (b) assaulting her and (c) her fleeing away from the house. There is no reason to disbelieve these three witnesses on this point. Therefore, this is an extra-judicial confession made by the appellant, Binod Paswan, before these three persons, In this context, the evidence of PW 13, Baijnath Paswan, the informant, is relevant. There is some difference with regard to the date of arrival but no discredit can be given to the witness on this ground for the simple reason that the dead-body was recovered, which is glaring fact on the information received from the appellant, Binod Paswan, In para 10 he says that Binod Paswan had come to his house and informed that he had assaulted his wife and she had fled, at that time there was he, his mother and father, PW 7, and Khusi Ram, PW 10, and it was 3.00 p.m. and after five minutes, the appellant Binod Paswan fled towards jungle. Khushi Ram, PW 10, in his evidence, vide para 1, says that Binod Paswan came at 12.00 noon and had asked about the whereabouts of his wife, then mother and father of the victim girl started weeping, Binod Paswan became perplexed and when further query was made, he said that he had given 2-3 slaps to his wife. Though in para 6, he says that earlier the police had not taken his statement and he was making evidence before the Court for the first time, but the evidence before the Court, in view of the consistent corroboration between the two statements, cannot be disbelieved on this score alone, particularly when this witness has got his house adjacent to the house of the informant, para 5, and his presence at that time cannot altogether be doubted. The factum that Binod Paswan had come and given such information is also stated by the father of the victim girl, PW 7 in para 3 and 4, though in para 17, this witnesses says that when his son-in-law informed about the assault, there was no witness. Thus, he contradicts PW 13 and PW 10. Despite this, there is no reason to disbelieve the evidence of other two witnesses as the trial Court noted his demeanor and concluded that this witness is a dull one (page 15). Thus, from this evidence, only this much is proved that the victim was given a few slaps by Binod Paswan and there was a quarrel and then the wife had fled away. There is no evidence that in presence of the father, the victim girl was ever assaulted, vide para 11, PW7. Even the informant PW 13 in his evidence does not say that any time, in his presence, the victim girl was assaulted. Thus, the sole instance of assault or quarrel proved against the appellant is on his extra-judicial confession. More than that, there is no evidence coming from either source or circumstance as stated earlier.
8. Now the question is whether this type of assault can be treated to be an act of cruelty mental or physical, The appellants belong to a caste Paswan and live in village; in ordinary domestic life, some quarrel and assault with the wife or some elder is not very uncommon in the station of life where the appellants and the victim girl were or in the society to which they belong. Therefore, this simple assault cannot be said to be a cruelty either mental or physical, particularly when nothing has been shown that she was subjected to such cruelty. Generally, in case of demand of dowry, if the cruelty is there, it perpetuates and may ultimately culminate in the death. Nothing has been stated by these witnesses the father, brother and uncle of the victim girl that earlier also some torture was perpetuated. Therefore, this single assault cannot be said to be a cruelty in the sense that it should have been, if there would have been a demand of dowry during the three years of marriage till the girl survived.
9. The next question is if it is taken as the cruelty, whether it was for demand of dowry. I again revert to the evidences of these three witnesses. In the fardbayan, it has been stated that before this occurrence also, the in-laws had assaulted the victim girl for that money. It has been found by now that there is no evidence of such previous assaults. Allegation has been made in the fardbayan that the time of Deshera, Binod Paswan had demanded Rs. 5000/- and on non-payment, he had threatened of dire consequences. The words, 'dire consequences' are very vague terms. It can be said that he meant that he would act against the informant and the father-in-law or it may also mean that he will treat the wife unfairly and cruelly or even kill her. The father, PW 7, has stated in his examination-in-chief that the son-in-law had demanded Rs. 500/- (it may be slip of pen on the part of the Recording Officer) that when it was not paid, he had threatened that he will do such thing so that everyone would be sufficiently punished. In para 13, he said that there is no witness on the point that he had demanded Rs. 5000/-, but it was the time of Durga Puja and in para 14, he said that whatever threat was given by the son-law, he had not complained against that to any person. Though in para 26, this witness said that earlier also, a case had been filed against this accused person, but the nature of the case was not known, nor any document had been brought on record to show the nature of the case. Unfortunately on this evidence, no question was asked under Section 313 Cr. P.C. from the accused and therefore, this evidence cannot be used against him.
10. The informant, PW 13, in para 2, says the same thing. In para 11, he says that 15 days prior to this occurrence, the appellant Binod Paswan had asked money and had threatened them, but he admits that he has not made any complaint against that threat to any villager but he volunteered to say that he had informed Khusi Ram and Dharamdeo Paswan in the same evening. The occurrence took place on or about 26-12-1991 and as per the fardbayan, money was demanded during Deshera. Generally, there is a gap of about 2-3 months between the Deshera and December, But this witness, contrary to the statements made in the fardbayan, said that only 15 days prior to the occurrence, thereat was given. Thus, he resiles from his statement made in the fardbayan. Now I proceed to see the evidences of Khusi Paswan and Dharmdeo Paswan on this point because this witness (informant) said that he informed these two persons in the same evening of such threatening, though the father, PW7, said that he had not said it to any body, Khusi Ram, PW 10, in examination-in-Chief said that he came to know of this demand from Baijnath in Deshera, but he did not say in his evidence that he also came to know, rather he said that for this money, the informant's sister had been tortured, but this torture has not been alleged by the informant himself. In para 10, he has affirmed his statement made in the examination-in-Chief. Dharamdeo Paswan is PW 11. He is the brother-in-law of the informant (from the wife's side), He says that whenever he went to Baijnath he was informed that for money, the in-laws of Parwati used to assault her and they had also demanded Rs. 5000/- and for non-payment, assault was made. In para 5, he says that such a disclosure was made during Deshera.
11. Thus, from the evidence, it is only established that in Deshera the demand was made and threat was given when these witnesses say that Parwati was being assaulted for non-payment and for demand of money, then it is their statement, which has not been made either by the father or brother, who were more competent to tell so. Neither the father nor the brother ever told that appellants used to assault Parwati for demand of money. It simply emerges from their statement with regard to demand, it was made once in Deshera and a threat of dire consequence was given; there is nothing more than this. The rest of the witnesses are interested and since none of these competent witnesses, father and brother, has said so, their evidence is of no significance.
12. There is a gap of about two months between the demand, thereat and the death. No doubt, there could be a strait-jacket formula for interpreting 'soon before the death', but in this case, the assault as proved above does not appear to be a cruelty proved for demand of drowy. Therefore, the presumption under Section 113B of the Evidence Act cannot be drawn. There is no reliable evidence against the mother-in-law that she also assaulted. The zeal of the informant appears to be so high that he also implicated the pralyzed 80 years old father-in-law, who was confined to bed for many years before the death of the victim girl, the circumstances that led the trial Court itself to acquit him. This indicates one more thing that there was a tendency to implicate even falsely all the in-laws. The trial Court got bogged in examining the principles behind dowry death and the social impact of such death but he did not examine the softness of evidence.
13. In the circumstances, it is not proved that the appellant Binod paswan had demanded dowry and for that he assaulted his wife and soon after such assault, the wife died in suspicious circumstance Consequently, both the appellants are acquitted of the charge under Section 304B IPC. As the appellant, Sugia Devi, is on bail, she is discharged from her bail bonds. The appellant, Binod Paswan, is directed to released from the jail custody forthwith, if not wanted in any other case (s). The appeal is allowed.