Penal Code, 1860 – S. 304B & 498A - Evidence Act, 1872 – S. 113B - Demand of cash as well as one colour TV - the presumption cannot apply unless it is established that soon before her death, a woman has been subjected to cruelty or harassment for or in connection with any demand for dowry.
IN THE HIGH COURT OF JUDICATURE AT PATNA
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
24-01-2019
Criminal Appeal (SJ) No.119 of 2009
Hari Prasad Giri v. State of
Bihar
Appearance : (In Criminal Appeal (SJ) No. 119 + 461 of 2009) For the
Appellant/s : Mr.Bhola Prasad, Adv. For the Respondent/s : Mr.Binod Bihari
Singh, APP Mr.Bipin Kumar, APP
J U D G M E N T
Against judgment of conviction dated 17.12.2008 and order of
sentence dated 19.12.2008 passed by Additional Sessions Judge, (FTC-5),
Kishanganj in connection with Sessions Trial No. 750/2007/77/2007 whereby and
whereunder, all the appellants, namely, Hari Prasad Giri, Guno Devi, and Sachita Giri (since deceased)
(Cr.Appeal (SJ) No. 119/2009), Dev Narayan Giri (Cr. Appeal (SJ) No. 461/2009),
have been found guilty for an offence punishable under Section 304B of the IPC
and each one has been sentenced to undergo RI for 7 years, has been challenged
under two different appeals, on account thereof, heard analogously and are being
disposed of by a common judgment.
2. At the present moment, it
looks desirable to divulge that one of the appellants, namely, Sachita Giri of
Cr.Appeal (SJ) No. 119/2009 died and on account thereof, this appeal abated
against him as per order dated 21.12.2018.
3. Kamal Giri, father of
deceased Arti Devi filed a written report before the O/C, Bahadurganj PS on
13.03.2017 disclosing the fact that Arti Devi was married with Dev Narayan
Giri, Son Of Hari Prasad Giri,
Residents Of Village-Gargaon(Loha Gara), Ps-Bahadurganj, Distt-Kishanganj about
three years ago whereupon, she began to reside at her Sasural. When he had gone
to bring her back on Bidai, at that very time, father-in-law of his daughter,
Hari Prasad Giri, mother-in-law, Guno Devi, husband, Dev Narayan Giri, cousin
father-in-law, Satya Narayan Giri, cousin brother-in-law, Babri Giri, grand
father-in-law, Sachita Giri advanced demand of cash as well as one colour TV. They
have also threatened to the extent that in case of non fulfillment of demand,
his daughter will have to face its ultimate consequence. They have also
threatened that she will have to sacrifice her life. As he resisted, on account
thereof, he was manhandled by them and then, ousted therefrom. In order to save
life of his daughter as well as expecting that in due course of time, the
matter will be pacified after coming to know about his financial condition, he
returned back therefrom without taking any recourse leaving his daughter at her
Sasural. However, her Sasuralwala continued with their atrocious activity
which, he came to know through different sources. On account of poverty as well
as helplessness, he found himself unable to resist. On 08.03.2007 at about 8.30
AM, his covillager, Raju Mahto who happens to be a cycle mechanic having his
repairing shop near MGM Hospital came to him and disclosed that his daughter
has been admitted at MGM Hospital in badly burnt condition. He immediately
rushed to the hospital where he found his daughter severely burnt. On query,
she disclosed that as cash and colour TV have not been provided in lieu of
dowry for that, her Sasuralwala was severely torturing her mentally as well as
physically. On 07.03.2007 at about 9:00 AM, Hari Pd. Giri, Guno Devi, Satya
Narayan Giri, Sachita Giri, Babri Giri came near her and all the family members
caught hold of her while her mother-in-law sprinkled K-oil and then lit fire by
match box as a result of which, she has been badly burnt.
4. After registration of
Bahadurganj PS Case No. 17/2007 investigation commenced, during course thereof,
dying declaration of the victim, Arti Devi was recorded who, later on died,
statement of witnesses were recorded, post-mortem report was procured and then,
after completing investigation chargesheet has been submitted against these
appellants including Sachita Giri (since deceased) keeping investigation
pending against the remaining absconding accused which happens to be the basis
for trial, meeting with the ultimate result, subject matter of instant appeal.
5. Defence case as is evident
from the mode of crossexamination as well as statement recorded under Section
313 CrPC is that of complete denial. It has also been pleaded that there was no
demand of dowry, nor the deceased was tortured with regard thereto.
Unfortunately, deceased met with an accidental fire during course of preparing
tea whereupon, she was taken to hospital by the appellants themselves.
Prosecution party illegally demanded exorbitant amount which was refused at
their end, on account thereof, got this case filed putting false and frivolous
allegation and in likewise manner, after tutoring the deceased got false,
wrong, tutored dying declaration. In support thereof, two DWs DW-1, Mahendra
Prasad Giri and DW-2, Nand Kumar Giri have been examined.
6. In order to support its
case, prosecution has examined altogether 12 PWs out of whom PW-1, Bhawani Pd. Giri,
PW-2, Om Prakash Giri, PW-3 Shiv Lal Giri, PW-4, Mayawati, PW-5, Umesh Kumar,
PW-6, Mithilesh Sharan, PW- 7, Dr. Nalini Kant Prasad, PW-8, Md. Matiur Rahman,
PW-9, Sudan Singh, PW-10, Kharag Giri, PW-11, Kamal Giri and PW12, Dayawati
Devi as well as has also exhibited Ext-1, Dying Declaration, Ext-2, Postmortem
Report, Ext-3, Signature of informant over written report. As stated above two
Dws have been examined, DW-1, Mahendra Prasad Giri and DW-2, Nand Kumar Giri.
7. While assailing the
judgment impugned, it has been argued at the end of learned counsel for the
appellants that the same is untenable in the eye of law in spite of the fact
that death of deceased occurred within seven years of marriage by burn.
8. Further to support such
plea that there happens to be no positive, conclusive, authentic evidence has
been at the end of the prosecution with regard to demand of dowry coupled with
the fact that soon before her death, deceased was tortured therefor by the
appellants. It has been submitted that on account of inconsistency amongst the
PWs coupled with so alleged dying declaration, it would be difficult for the
prosecution to retrieve. That being so, the prosecution case is found deficient
one.
9. It has also been urged that
the dying declaration did not fulfill the legal requirements so prescribed for
its admissibility, that being so, it happens to be a case of no evidence. As
such, these two appeals are fit to be allowed.
10. On the other end, the
learned APP refuted the submission and submitted that by producing consistent,
reliable evidence prosecution has proved its case beyond reasonable doubt,
hence, judgment impugned is fit to be confirmed.
11. After hearing rival
submissions as well as from the evidence available on the record, it is
apparent that death of deceased within seven years of marriage while she was
staying at her Sasural by burning, is admitted one. So, the evidence of PW-7
Dr. Nalini Kant Prasad is not refferred in detail save and except that he had
found cause of death by septic caused on account of burn. That means to say,
some of the ingredients of Section 304B that there should be death within seven
years of marriage, death by burning is found not denied. So, now the evidences
have to be seen in order to trace out whether the prosecution has succeeded in
substantiating the remaining ingredients.
12. In Jagjit Singh v.
State of Punjab reported in (2018) 10 SCC 593, it has been held as
follows:-
11. Learned counsel for the appellant drew our attention to the
recent judgment of this Court in the case of Major Singh and Another v. State of Punjab reported in 2015 (5) SCC
201. It was a case of unnatural death. Therein the prosecution witnesses, the
complainant-father and brother of the deceased deposed that they saw the
accused dragging the deceased towards the room inside the house and that she
was trembling and on seeing the witnesses, all the four accused ran away and
the deceased breathed her last. The father had spoken about the information he had
given to the village panchayat. The Court proceeded inter alia as follows:
“10. To sustain the conviction under Section 304- B IPC, the following
essential ingredients are to be established: (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.”
The Court also proceeded to hold as follows:
“14. The prosecution has not examined any independent witness or
the panchayatdars to prove that there was demand of dowry and that the deceased
was subjected to ill- treatment. Ordinarily, offences against married woman are
being committed within the four corners of a house and normally direct evidence
regarding cruelty or harassment on the woman by her husband or relatives of the
husband is not available. But when PW-3 has specifically stated that the demand
of dowry by the accused was informed to the panchayatdars and that panchayat
was taken to Village Badiala, the alleged ill-treatment or cruelty of Karamjit
Kaur by her husband or relatives could have been proved by the examination of
the panchayatdars. The fact that the deceased was subjected to harassment or
cruelty in connection with demand of dowry is not proved by the prosecution. It
is also pertinent to note that both the courts below have acquitted all the
accused for the offence punishable under Section 498-A IPC.”
12. We noticed that it was a
case where the courts had acquitted all the accused for the offence under Section 498-A of the IPC. The Court noted
that the case of the prosecution is that there is a demand for scooter and
proceeded to hold inter alia as follows:
“18. Applying these principles to the instant case, we find that
there is no evidence as to the demand of dowry or cruelty and that deceased
Karamjit Kaur was subjected to dowry harassment “soon before her death”. Except
the demand of scooter, there is nothing on record to substantiate the
allegation of dowry demand. Assuming that there was demand of dowry, in our
view, it can only be attributed to the husband Jagsir Singh who in all
probability could have demanded the same for his use. In the absence of any evidence
that the deceased was treated with cruelty or harassment in connection with the
demand of dowry “soon before her death” by the appellants, the conviction of
the appellants under Section 304-B IPC cannot be sustained. The trial court and the High Court have
not analysed the evidence in the light of the essential ingredients of Section 304-B IPC and the conviction of
the appellants under Section 304-B IPC is liable to be set aside.” (Emphasis supplied)
In this
connection it is to be noticed that the appellants in the said case was not the
husband, but they were the parents-in-law of the deceased.
13. We have already noticed
that the essential ingredients of Section 304-B IPC as noticed by this Court in Major Singh & Another vs. State of Punjab (supra). Parliament has
inserted Section
113-B in the Evidence Act. In order that the
presumption therein has to be applied it must be established that soon before
her death, such woman must have been subjected by such person to cruelty or
harassment for, or in connection with any demand of dowry. Upon this fact being
established, undoubtedly, the court is mandated to assume that the person has
indeed caused the dowry death as contemplated in Section 304-B IPC. Therefore, the presumption cannot apply
unless it is established that soon before her death, a woman has been subjected
to cruelty or harassment for or in connection with any demand for dowry. The
words “soon before” her death has also been considered in a large number of
cases.
14. We need only to advert to a
recent judgment rendered by a Bench consisting of three learned Judges in Rajinder Singh v. State
of Punjab reported in
2015(6) SCC 477 only for the purpose of appreciating the words “soon before”
occurring in Section
304-B IPC. This is what the Court
has to see “24. We endorse what has been said by these two decisions. Days or
months are not what is to be seen. What must be borne in mind is that the word “soon”
does not mean “immediate”. A fair and pragmatic construction keeping in mind
the great social evil that has led to the enactment of Section 304-B would make it clear that
the expression is a relative expression. Time-lags may differ from case to case.
All that is necessary is that the demand for dowry should not be
stale but should be the continuing cause for the death of the married woman
under Section 304-B.”
13. From the nature of the
evidence, it is evident that two kinds of oral evidences have been adduced, the
first category statement of the witnesses and the second one, the dying
declaration. So far reliability of dying declaration is concerned, in Madan @ Madhu
Patekar v. State of Maharashtra reported in 2018 CriLJ 2880, it has been held as follows:-
“9. Before we analyse the case at hand it would be important to note
certain aspects of dying declaration. Although we can trace the admissibility
of the dying declaration under Sections 6, 7 and 32 of Indian Evidence Act that
the rule of admissibility of dying declaration can be traced to King v.
Woodcock, [(1789)168 ER 352], which is considered to be the most important case law on the
aspect of dying declaration, as in that case the declaration of deceased therein
(Silvia) was the only evidence as to what happened to her, came from Silvia
herself. The Court therein categorically justified the usage and importance of
dying declaration to be "made in extremity, when the party is at
the point of death, and when every hope of this world is gone: when every motive
to falsehood is silenced, and the mind is induced by the most powerful
considerations to speak the truth." The court further held that "a situation so solemn,
and so awful, is considered by the law as creating an obligation equal to that
which is imposed by a positive oath administered in a Court of Justice."
10. The rule of admissibility of dying declaration is no more res integra. In the adjudication of a
criminal case, dying declaration plays a crucial role. A dying declaration made
by a person as to cause of his/her death or as to any of the circumstances which
resulted in his/her death, in cases in which cause of death comes in question,
is relevant under Section 32 of the Evidence Act. It has been emphasized number
of times that dying declaration is an exception to the rule against
admissibility of hearsay evidence. The whole development of the notion that the
dying declaration, as an exception to the hearsay rule, is based on the
formalistic view that the determination of certain classes of evidence as admissible
or inadmissible and not on the apparent credibility of particular evidence
tendered.
11. We are aware of the fact that the physical or mental weakness
consequent upon the approach of death, a desire of self-vindication, or a disposition
to impute the responsibility for a wrong to another, as well as the fact that
the declarations are made in the absence of the accused, and often in response
to leading questions and direct suggestions, and with no opportunity for
cross-examination: all these considerations conspire to render such declarations
a dangerous kind of evidence. In order to ameliorate such concerns, this court
has cautioned in umpteen number of cases to have a cautious approach when
considering a conviction solely based on dying declaration. Although there is
no absolute rule of law that the dying declaration cannot form the sole basis
for conviction unless it is corroborated, the courts must be cautious and must
rely on the same if it inspires confidence in the mind of the Court [See: Ram Bihari Yadav
Vs. State of Bihar & Ors. [(1998)4 SCC 517] and Suresh Chandra Jana
& Ors. Vs. State of West Bengal &Ors., [(2017)8 SCALE 697].
12. Moreover, this court has
consistently laid down that a dying declaration can form basis of conviction,
if in the opinion of the Court, it inspires confidence that the deceased at the
time of making such declaration, was in a fit state of mind and there was no
tutoring or prompting. If the dying declaration creates any suspicion in the mind
of Court as to its correctness and genuineness, it should not be acted upon
without corroborative evidence [See Also: Atbir Vs. Government of NCT of Delhi,
[(2010)9 SCC 1], Paniben Vs. State of Gujarat, [(1992)2 SCC 474] and Panneerselvam
Vs. State of Tamilnadu, [(2008)17 SCC 190].
14. PW-1 has stated that the
occurrence is about 10 months ago. He was at his house. He heard that Arti Devi
sustained burn injury at her Sasural whereupon he had gone there and inquired
from Arti who disclosed that during course of cooking she got burnt. Then he
was declared hostile. During cross-examination, he has stated at para-2 that
Arti used to visit her maika along with her husband on festivals and used to
return along with him. He has also stated that there was love and affection
amongst the spouse. There was no question of dowry. In para-3, he has further
stated that there happens to be no electrification at the village of accused.
He has further stated that he had not heard that the victim was put on fire
after sprinkling K-oil. He heard that during course of cooking, she got burnt.
15. PW-2 has stated that
daughter of his co-villager, Kamal Giri namely, Arti Devi was married at
village-Lograha. Arti got burnt at her Sasural. After getting this information
he had also gone to see Arti. He had seen Arti in burnt condition. She was
completely burnt below her waist. Sari, petticoat were also burnt. Her marriage
was solemnized one and a half years earlier than the date of occurrence. Arti
used to call him Mama. As he used to stay out of village, on account thereof,
he has got no information with regard to demand of dowry. Identified only the
female accused. He had also stated that the aforesaid female accused also used
to call him Mama. The female accused disclosed her name as Guno Devi. The other
male accused disclosed their names as Hari Pd. Giri, Satya Narayan Giri, Sachita
Giri, Babri Giri. During cross-examination, he had stated that he had not seen
the victim under flame.
16. PW-3 has stated that he
heard about the occurrence. He had come to Lion’s Club where he had seen Arti, daughter
of his Sarhu in burnt condition. On query, she disclosed that during course of
preparation of tea, she sustained burn. Subsequently, she died at hospital. He
had not claimed identification of any of the accused. During cross-examination at
para-2, he had stated that the victim along with her husband used to visit the
village and during course thereof, she had not made any kind of complaint.
There was no physical torture to her at any previous occasion. The victim used
to visit her Maika.
17. PW-4 has stated that
deceased was her cousin daughter-in-law who was married with Dev Narayan about
three years ago. She died at her Sasural. She died one year after the marriage.
She had seen her dead body at Kishanganj Hospital. Identified the accused.
During cross-examination, she had stated that deceased was her cousin
daughter-in-law. She was preparing tea. None was present at the house and
during course thereof, her clothe was caught under the flame whereupon, yelled.
She rushed and covered her by a jute bag. Then thereafter, fire was
extinguished. Then she was taken to Kishanganj Hospital. Accused persons have
got cordial relationship with the deceased. In spite of best treatment at Kishanganj
Hospital, deceased could not survive.
18. PW-5 is the Magistrate who
had recorded the dying declaration of the deceased, Arti Devi at MGM Hospital, Kishanganj
on an order of CJM on 14.03.2007 at about 5.45 PM. Before her examination, he
inquired from the treating doctor, Dr. Sanjive (so present) who disclosed that
patient was fit to make statement. Identification of patient/Arti was made by Dr.
Sanjive himself. He also talked with Arti and found her fit for making
statement and then thereafter, he recorded her statement and then, read over to
her. Finding it correct, she put her RTI. Then he had exhibited the statement
as Ext-1. During cross-examination, he had stated that he had not accompanied the
FIR along with the case number. He had not mentioned the room no. ward and bed
no. At that very time, only patient/Arti along with Dr. Sanjive was present.
She was conscious. Doctor had also affirmed the condition fit for giving
statement. He also inquired whereupon, she began to speak. He scribed the same and
then her RTI was taken. Thereafter, he returned back.
19. PW-6 is the I.O. who has
stated that on 13.03.2007, he was entrusted with an investigation of Bahadurganj
PS Case No. 17/2007. He recorded further statement of the victim. He inspected
the place of occurrence which happens to be Sasural of victim lying at
village-Gargaon. Then had disclosed the topography of the house having two thatched
rooms which happen to be habitable. There happens to be courtyard in front of
both rooms. At western corner of the courtyard, there happens to be kitchen
which is the place of occurrence. Recorded statement of witnesses. Filed
application before the learned CJM, for recording of dying declaration of the
injured/victim and then, received a copy of dying declaration from the court.
Though, he had not prepared inquest report but procured postmortem report and
after concluding the investigation, submitted charge-sheet against the accused persons.
He has also stated that during course of investigation he had recorded
statement of the victim, Arti who had stated that for procurement of dowry, her
mother-in-law, grand father-inlaw, Bhainsur (elder brother of husband), cousin
father-in-law after sprinkling K-oil attempted to kill. He had also apprehended
the accused persons. During cross-examination at para-6, he has stated that he
had not found smell of K-oil at the PO. In para-7, he has stated that he had
seen the hair of Arti burnt. He had recorded the statement of Arti at MGM
Hospital, Kishanganj on 14.03.2007. At that very time, cousin mother-in-law,
Mayawati was there. She was admitted at burn ward. He had not disclosed bed no.
In para-8, he has stated that at the time of her statement the burnt clothes
were not over her bed. He had not inquired from the doctors. At that very time,
he only inquired from Mayawati who had supported the prosecution case. In
para-9, he has stated that he is not remembering whether her face was burnt or
not but both palms were burnt. Her body was covered with wrapper. He has not
seen blood spot over wrapper. In para- 11, he has stated that he had not gone
inside the kitchen. He has further stated that PO was shown by Kamal Giri.
20. PW-8 has stated that he
does not know about the occurrence and so was declared hostile. Even then,
nothing substantial has been procured. The same happens to be the status of
PW-9.
21. PW-10 has stated that
deceased Arti was her Bhagni (sister’s daughter). She was married with Dev
Narayan. After marriage, she had gone to Sasural where she died on account of
burning which she sustained during course of cooking and so was declared
hostile.
22. PW-11 is the informant who
has stated that he had given Fardbeyan to the police official regarding
occurrence and was read over to him and finding it correct, he put his
signature (exhibited). Then has stated that Arti (deceased) was his daughter
who was married with Dev Narayan about three years ago from the date of
occurrence. After marriage, his daughter had gone to her Sasural. She had
frequently complained that she was being tortured, victimized relating to
dowry. She had also disclosed that her Sasuralwala used to threaten that in
case of non fulfillment of demand, she will be murdered. They were demanding one
lakh in cash and a colour TV. Guno Devi, Hari Pd. Giri, Satya Narayan Giri,
Sachita Giri, Babri Giri were actively involved in demanding dowry. Husband had
not demanded. His daughter had disclosed that out of poverty her Naiharwala is
unable to fulfill the demand. About 1 and ½ years ago at about 4:00 PM, one
cycle mechanic informed that his daughter has been burnt and is admitted at
hospital whereupon, they rushed and seen his daughter in badly burnt condition.
Then, the additional P.P. asked what his daughter had spoken whereupon, he kept
mum. Then has stated that he had made true statement before the police
whereunder he had stated that accused Hari Pd. Giri, Guno Devi, Satya Narayan
Giri, Sachita Giri, Babri Giri and others with an intention to kill his
daughter sprinkled K-oil and lit fire as their demand of dowry was not fulfilled.
Identified the accused. Then has stated that his daughter has died. During
cross-examination at para-11, he has stated that this case has been registered
after five days of the alleged occurrence. He is not remembering the exact
date. In para-12, he has stated that he brought the written report from the
village. He is unable to disclose the name of its writer. He had simply
directed to prepare application whereupon, he put his signature and handed it
over to the police. In para-13, he has stated that police had not recorded his
statement. He has further stated that after visiting police station, he had
gone to the hospital. In para-14, he has stated that his daughter was sleeping but
was talking. He has further stated that his wife has disclosed that on query ,
his daughter has disclosed that during course of cooking her clothe caught fire
which was extinguished by her causin mother-in-law. In para-15, he has stated
that he used to go regularly and talked with the deceased. In para-16, he has stated
that Raju, a cycle mechanic had informed regarding the occurrence. In para-17,
he has stated that the accused persons actively involved in bringing medicine
for the treatment of the deceased. In para-18, he has stated that after 13 days
of the occurrence, she died. In para-19, he has stated that house of accused is
not electrified. He had gone to Sasural of Arti once prior to the occurrence.
In para-21, he has stated that Dev Narayan Giri is his son-in-law. His
son-in-law along with his daughter used to visit at his place on festivals.
Again said that after six months of marriage, his daughter had disclosed that accused
persons are demanding money as well as a colour TV. At that very time, he had
stated that as her house is not electrified so, what will be with the TV. He
has further stated that he had assured that TV will be given later on. Then has
denied the suggestion that on account of wrong information, this case has been
instituted. He denied the suggestion that the victim sustained self inflicted
burn injury.
23. PW-12 is the mother of the
deceased. She has stated that she is very much apprehensive as, she has been threatened.
Then has stated that this case has been launched by her husband. Her daughter
Arti was married with Dev Narayan Giri son of Hari Pd. Giri about two years
prior to the death of Arti. Her Sasuralwala used to torture her for procurement
of Rs. 50,000/- as well as a colour TV. Even after her assurance that they will
fulfill the demand gradually on account of financial constraint, they began to
threaten that in case of non fulfillment, she will be murdered. Threatening was
given by Hari Pd. Giri, Guno Devi, Satya Narayan Giri, Sachita Giri, Babri Giri
and Dev Narayan. Lastly, the accused persons after sprinkling K-oil lit fire
over the deceased as a result of which, she became badly burnt. On getting
information with regard to admission of her daughter at Medical College
Hospital, they rushed and found her daughter in burnt condition. At that very
time, her statement was being recorded by the Magistrate. She had also heard
the statement which her daughter had given that the accused persons conjointly
got her burnt after sprinkling K-oil. About 14 days after the occurrence, her
daughter died. Identified the accused. During cross-examination, she has stated
that her husband will disclose the exact quantum of demand. In para-8, she has
stated that police had not recorded her statement but had recorded statement of
her daughter. In para-9, she has stated that Sasuralwala of her daughter had
not informed regarding the occurrence rather another person informed them. In
para-10, she has stated that 10-12 more persons were admitted at the place where
her daughter was. As she was not in a position to identify the doctor, so could
not say whether the doctor was present or not. After recording of statement,
Magistrate had gone. This case has been instituted on account of burning of her
daughter. In para-11, she had stated that she had not gone to the Sasural of her
daughter but again corrected, occasionally visited. In para- 12, she had stated
that about 15 days of marriage, demand of cash of Rs. 50,000/- and a colour TV
was advanced by her husband as well as family members. In para-13, she has
stated that her son-in-law had not demanded but again corrected that her
son-in-law had also demanded. Then had disclosed that what items were given in
dowry, she is unable to say. In para-14, she has further stated that she had
made statement before the police and her daughter had also made statement
before the police. In para-15, she has stated that at about 8:00 AM, Raju
Mistri had informed regarding condition of her daughter. Then she has stated
that she rushed to the place where she was burnt, again corrected that at
hospital. Then has denied the suggestion that during course of cooking her
daughter caught fire as a result of which, she got burnt.
24. DW-1 has stated that the
accused persons are his co-villagers. Their houses are adjacent to him
intervened by a road. Daughter-in-law of Hari Prasad Giri, namely, Arti was residing
at her Sasural after marriage. Occasionally, she used to visit her Maika on
festival. She used to visit his house and during course thereof, she had not
disclosed anything with regard to demand of dowry as well as torture having
been inflicted upon her on that very score. He has further stated that she was
duly acknowledged at her Sasural. She died of burning about 1 and a ½ years
ago. She got burnt at about 9-9.30 AM. They have heard that during course of
preparing tea, her clothe caught fire as a result of which, she sustained burn
injury. Her Chachia Saas extinguished fire. She was taken to Kishanganj Hospital
where treatment was at the instance of her Sasuralwala. Unfortunately, she
could not survive. During cross-examination, he had stated that she was married
1 and a ½ years prior to the date of occurrence. He had seen Arti in burnt
condition at her Sasural. She was kept covered. S.P. had come to his village
and had interrogated. In para-5, he has stated that he had not seen the
kitchen. S.P. had seen the kitchen and during course thereof, had not found any
sign. In para-6, he has stated that he was not on talking terms with Arti but
his family members were.
25. DW-2 has stated that his
house lies north to the house of Hari Prasad Giri at a distance of 10-12 hand.
He had not heard sound of Maar-peet or incidence of cruelty. Arit was duly
honoured at her Sasural because of the fact that she was the only daughter-in-law.
Arti along with her husband occasionally visited her Maika. He had not heard
rumour with regard to cruelty having been inflicted upon Arti. After hearing
alarm of firing they rushed. Chachia Saas of Arti extinguished the fire. Arti
was taken to hospital for treatment. During crossexamination, he has stated
that the daughter-in-law does not visit in the village. In likewise manner,
daughter-in-law of Hari Prasad Giri had not visited frequently. He is unable to
say when and where she had gone. He has further stated that at the verge of
death a man always speaks the truth.
26. After going through the
record, it is evident that prosecution has conducted the trial carelessly.
Before examination of I.O. so many witnesses were declared hostile, but their
statement was not at all brought on record through the I.O. nor the witnesses
who were examined after the examination of I.O. and were declared hostile,
allowed to remain idle, as the I.O. was not recalled. Furthermore, during
course of examination-in-chief, I.O. has not spoken that P.O. was shown to him
by the informant but during cross-examination narrated like so. So would have
been clarified. Apart from this, his evidence on the point of proper
identification of the P.O. is found full of ambiguity. Apart from this, some
sort of laches have also been perceived at the end of I.O. during course of conduction
of investigation even having discloser at the end of the I.O. that statement of
deceased was recorded by him, it could not be exhibited. However, it is settled
at rest that on account of lapses of the I.O., the prosecution case would not fail.
27. From the evidence available
on the record, it is evident that during course of cross-examination of the Magistrate
nothing has been suggested, even challenged with regard to mental condition of
the deceased that at the time of so alleged dying declaration, she was not at
all mentally fit nor was suggested to the Magistrate that he before examination
had not tested with regard to her mental condition in an alternative tutored
one. In likewise manner, presence of doctor, Dr. Sanjay as well as staff nurse,
Jolly Das (not examined), could not found to be deficient in the aforesaid
facts and circumstances of the case. The doctor who had conducted postmortem,
(PW-7) was not at all cross-examined nor suggested that on account of sustaining
such burn patient could not be in a position to speak. That means to say, no
sincere efforts have been taken at the end of appellants to discredit the dying
declaration.
28. Contrary to it, from the
evidence of the PW-8, it is evident that they have half heartedly swum towards
the appellant which too is evident from the evidence of PW-10, informant as
well as PW-11 his wife. However, they are limited to the extent of son-in-law.
29. After going through the
dying declaration along with evidence available on record, it is evident that
prosecution has been able to substantiate the allegation, whereupon, in terms of
Section 113B of the Evidence Act, presumption would lean in favour of
prosecution though rebuttable.
30. DW-1 and DW-2 have been
examined at the end of appellant along with PW-5, his family member. After
going through the evidence, it is crystal clear that they have not been able to
discharge the burden properly as none of them disclosed where they have seen
the deceased, whether deceased was running, crying for rescue, whether they
have seen the kitchen, what kind of furnace whether it was gas, or wooden stove
and burning having kettle over the same.
31. Giving anxious
consideration, appellant, Deo Narayan Giri is found entitled for benefit of
doubt, that being so, is acquitted. The judgment of conviction and sentence recorded
by the learned lower court against him, is hereby, set aside. Consequent
thereupon, Cr. Appeal (SJ) No. 461/2009 is allowed.
32. Since appellant, Deo
Narayan Giri is on bail, he is discharged from its liability.
33. So far appellants, Hari
Prasad Giri and Guno Devi are concerned, considering the materials available on
the record along with dying declaration, the prosecution is found succeeded in
substantiating the allegation and on account thereof, the judgment of
conviction and sentence recorded by the learned lower court to their extent, is
hereby, confirmed. Consequent thereupon, Cr. Appeal (SJ) No. 119/2009 is,
hereby dismissed.
34. Appellants, Hari Prasad
Giri and Guno Devi are on bail, their bail bonds are hereby, cancelled
directing them to surrender before the learned lower court within four weeks to
serve out the remaining part of sentence failing which, the learned lower court
will be at liberty to proceed against them in accordance with law.