Saryu Sharma @ Suryu Mistry and anr. Vs. the State of Bihar - Court Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.181 of 2011 =========================================================== 1. Saryu Sharma @ Suryu Mistry, Son of late Jodha Mistry 2. Rajesh Sharma, Son of Saryu Sharma @ Saryu Mistry. Both resident of Village- Rajaundha, P.S. Raushanganj, District- Gaya. .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Ashok Kumar Sinha & Mr. Sudhir Kumar Sinha, Advocates. For the Respondent/s : Mr. S.N. Prasad, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA ORAL JUDGMENT

Date:

18. 09-2013 Both the appellants have preferred this appeal against their conviction for the offence under sections 304 B of Indian Penal Code and section ¾ of the Dowry Prohibition Act and sentenced to undergo R.I. for ten years and three months respectively for both the offences which are to run concurrently as awarded on 4th January, 2011 by 3rd Additional Sessions Judge, F.T.C. Gaya in Sessions Trial No. 772 of 2009 arising out of Rousanganj P.S. Case No. 14 of 2006.

2. The prosecution has come out with the case as revealed from the written application of the Informant Girish Mistry, P.W. 4 dated 21 st Aprl, 2006 is that his second daughter was married with Rajesh Sharma, appellant No. 2 son of Saryu Sharma @ Suryu Mistry, appellant no.1 on 7 th May, 2005. Since after marriage there was continued demand of Rs. 50,000/- and one sewing machine and after ten days before the daughter also sent a letter indicating renewal of such demand. And on 18.04.2006 through appellant no.1 one information was received about illness of Informant’s daughter who arrived at Patna High Court CR. APP (SJ) No.181 of 2011 dt.18-09-2013 2 their place and learnt from the villagers that they have already proceeded for Gaya. On 19.04.2006 he arrived there at Magadh Medical College and Hospital, Gaya and found his daughter burnt dead. Subsequently, he could learn she was killed by the appellants. The police after institution of the case and completing investigation submitted charge sheet. Consequently, the appellants faced trial for the offence under sections 304 B/34 I.P.C. and ¾ D.P. Act.

3. To substantiate charges the prosecution has examined altogether five witnesses besides following documentary evidence:- Ext. 1- Signature on written report of Informant. Ext. 2- Signature of Informant on Protest Complaint. Ext. 3- P.M. Report. No oral or documentary evidence except Ext. A alleged fardbeyan of the Informant said to be recorded at Magadh Medical College and Hospital, Gaya admitted under section 294 Cr.P.C. was produced in defence. However, considering the materials available, trial court finding the appellants guilty convicted and sentenced them in the manner afore-stated giving rise to the present appeal.

4. It is contended on behalf of the appellants that it is appellant no.1, Saryu Sharma @ Suryu Mistry who intimated the Informant about the incident caused due to accidental coming under fire during preparation of meal, ultimately resulted into death of the deceased. There was no demand of dowry nor the appellants were in any way instrumental in the accidental death of the deceased. Even the prosecution has not produced any material including the alleged letter send by the deceased to show any demand of dowry or torture soon before death of the deceased. Hence, neither section 304 B I.P.C. nor section ¾ D. P. Act is attracted.

5. On the other hand, learned Additional P.S. while supporting Patna High Court CR. APP (SJ) No.181 of 2011 dt.18-09-2013 3 findings of the court below on the ground mentioned thereunder further stated that by consistent evidence the prosecution has established demand of dowry, torture and unnatural death of the deceased within a year of her marriage. This itself shift burden upon the appellants to rebut the presumption against them, but neither by cross-examination of any prosecution witnesses nor by producing oral or documentary evidence in defence they are ever tried to rebut the presumption under law against them. Even they are not dared to suggest in their statement under section 313 Cr.P.C. what is being argued as accidental death during preparation of milk. The finding of the court below requires no interference.

6. Out of five witnesses, P.W.1 Naresh Mistry, uncle of the deceased has stated the prosecution version with only addition that appellant no.1 personally had come to inform the prosecution side before her death. In cross- examination this witness has said about frequent visit of the deceased at her parents place and further about death of the deceased he could learnt from his brother, the Informant, who also was forced to put his signature on some paper at Magadh Medical College & Hospital, Gaya and also no protest application was filed against such forceful attaining signature.

7. P.W. 2 Ram Lagan Prasad, a co-villager and companion of the Informant to Police Station where F.I.R. was instituted and said about killing of the deceased for some sort of dowry.

8. P.W. 3 Randhir Sharma, son of the Informant states about prosecution version and it is he who for the first time on 18.04.2006 on getting information about the deceased being in serious condition rushed to the village but found the door of the house was locked, the appellants and patient have proceed for Magadh Medical College & Hospital, Gaya. He returned home and on next very day accompanied by his father went to Gaya where found his sister Patna High Court CR. APP (SJ) No.181 of 2011 dt.18-09-2013 4 burnt dead, cremation etc. were done by his father. He further said, at Hospital same statement was given by his father whose signature was obtained on a blank sheet. In cross-examination he said about marriage performed in the temple and frequent visit of his sister to village for the purpose of appearing at matriculation examination. Inspite of full flagged cross-examination neither any challenge was offered against his statement about obtaining of his father’s signature on a blank sheet nor any cross-examination was on that point making such statement unchallenged.

9. P.W. 4, Girish Mistry is the Informant stated the prosecution case about demand. In very para-1 of the examination-in-chief he has said it was at the time of marriage itself with further addition about the fact that his signature was obtained by force there. He proved his signature on written application submitted before local police station on the basis whereof present case has been instituted. He further proved his signature Ext.2 on the protest application and about letter of the deceased he says, it is not available, whenever traced out he will produce. At initial stage of cross-examination in paras- 11 and 18 this witness has said, there was regular demand of machine etc and victim was being tortured. In para-14 he says that he got information at the Hospital that his daughter succumbed to the injury at previous night itself. In paras- 19 and 20 of the cross- examination he says that he has visited inside the house of appellants containing court yard and meal was being prepared at the open place. He has specifically denied the suggestion that during preparation of meal accidentally she came under flames and in para-28 he says at Magadh Medical College & Hospital he had given statement with full confidence but paper has been changed and there is endorsement of the court that no such paper is on the record.

10. Last witness P.W.5 is Dr. Arvind Prasad, who hold autopsy Patna High Court CR. APP (SJ) No.181 of 2011 dt.18-09-2013 5 and proved PMR Ext. 3 with the following antimortem injuries:- “(i)Demo epidermal burn with line of redness and red floor present involving body surface except soles, scull hairs were burnt over front. Smell of kerosene oil at scalp hairs present. Trachea was mildly conjusted. Lungs were grossly conjusted. Uterus was 6 weans size. Drau blood present is filling the uterine cavity. Time since death within 24 hours causing death is coming by burn injuries (dry heart) fire used was kerosene oil. The pattern of burn and presence of kerosene oil indicates suicides or homaecidare burning.”

11. No doubt the Investigating Officer of the case has not been examined, but nothing is shown causing any prejudice to the appellants for his non examination. If at all his examination was required to prove or enlightened any material in support of defence version he could have been called by the appellants as a defence witness also even for the purpose of cross-examination, but no such attempt was made. Moreover, though Ext. A is on record marked under section 294 Cr. P.C. but the Informant was also not cross-examined on the contents therein when he and other prosecution witnesses referred to above have repeatedly been making statement about obtaining Informant’s signature by force on a blank sheet. In such a case decision of this Court in the case of “Surya Nath Upadhaya & Ors. Vs. The State of Bihar” reported in 2003 (1) PLJR 620 wherein in paragraph-12 it is held as follows:- “…………………As a matter of fact under section 294 Cr. P.C. it is open to the Court to read the Postmortem Report in evidence without formal proof where the genuineness of the report is not disputed. Neither genuineness of the postmortem report has been disputed nor any argument has been made as to how the accused suffered any prejudice on account of non- examination of the doctor. Whether the accused has suffered prejudice or not is a question of fact and cannot be inferred as strait jacket formula.” is of no help to the appellants since Ext. A cannot be said to be an admitted piece Patna High Court CR. APP (SJ) No.181 of 2011 dt.18-09-2013 6 of document. Simultaneously, another decision of this Court in the case of “Ashok Poddar & Anr Vs. State of Bihar” reported in 1995 (1) PLJR 55 is also not applicable in this case since there is no evidence on record to indicate it was an accidental death, inspite of death due to burn caused by kerosene oil.

12. The Apex Court in a case “Salamat Ali & Anr Vs. State of Bihar” reported in 1996 (1) PLJR 7 (SC) is also not applicable in the instant case, since unlike the case before the Apex Court there is nothing only to indicate some quarrel between the deceased and in-laws, rather in the instant case the material discussed above are indicative of continuous demand and torture resulting into unnatural death of the deceased within a period less than a year.

13. Much reliance is placed on the decisions of this Court in the case of “Smt. Kalawati Devi & Ors. Vs. State of Bihar” reported in 2013 (2) PLJR 995 Md. Nizamuddin @ Nizam Vs. State of Bihar, reported in 2013 (3) PLJR 23 and Kedar Sahni Vs. state of Bihar reported in 2013 (3) PLJR 344 Since in all such cases matter was entirely different, prosecution was not in a position to establish demand and torture etc.

14. On the contrary, in the instant case as stated above the material produced by the prosecution establishes what is required to validly attract commission of the offence under section 304 B I.P.C. and the presumption under law as contemplated under section 113 B of the Evidence Act which reads as such:- 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 of dowry, such death shall be called “dowry death’, and such husband or relative shall be deemed to have caused her death.” “113-B. Presumption as to dowry death- When the question is Patna High Court CR. APP (SJ) No.181 of 2011 dt.18-09-2013 7 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. “ 15. On over all consideration of the materials as discussed above, finding no reason to interfere with the conviction of the appellants, hence affirmed, but at the same time taking into consideration the age of the appellant no. 2, sentence is reduced to eight years for the offence under section 304 B I.P.C, with fine to Rupees Ten thousand, in default of which he shall further to undergo R.I. for two years. The amount of fine on deposit shall be payable to the Informant.

16. With the above modification in sentence, this appeal is hereby dismissed. (Akhilesh Chandra, J) Abhay/-