CRIMINAL APPEAL No.67 OF 1993
Against the judgment and order dated 12.2.1993 and 16.2.1003
passed by Sri Sarju Prasad, 3rd Addl. Sessions Judge,
Aurangabad in S.Tr.No. 11 of 1991/ 19 of 1991.
URMILA DEVI------------------------------------------Appellant
Versus
STATE OF BIHAR---------------------------------------Respondent
For the appellant : Mr. Ranbir Singh, Amicus Curiae
For the respondent: A.P.P.
P R E S E N T
THE HON’BLE JUSTICE SMT. REKHA KUMARI
Rekha Kumari,J., This appeal is directed against the judgment dated
12.2.1993 passed by the 3rd Addl. Sessions Judge, Aurangabad in
S.Tr.No. 11 of 1991/ 19 of 1991 whereby he has convicted the
appellant Urmila Devi under sections 498A and 304B of the Indian
Penal Code and sentenced her to undergo R.I. for seven years for
the offence under section 304B I.P.C. and R.I. for two years for
the offence under section 498A I.P.C. and has directed that the
sentences would run concurrently.
2. There were three accused in this case, namely,
1. Shrikant Pathak, 2. Shanti Devi, Wife of Shrikant Pathak and
3. Urmila Devi (appellant), D/o Shrikant Pathak. All were
convicted and sentenced as aforesaid.
3. The prosecution case as disclosed from the written
report dated 9.9.1990 of Surajnath Pathak (informant) of
Irgutala, Ranchi is that his daughter Kusum Devi was married to
Gayandutta Pathak, S/o Shrikant Pathak of village Basaura,
District Aurangabad in 1987. At the time of marriage he had given
dowry according to his means, but after Gauna, Vinayakdutta
Pathak, the elder brother of his son-in-law, claiming himself to
be the karta of the family, started demanding cycle etc. and
torturing his daughter for that. Accused Srikant Pathak also at
his instance harassed his daughter. On 3.9.1990 at 9 A.M. his
son-in-law came to his residence at Ranchi and gave him a letter
of his daughter and complained that his father had discontinued
to make provisions of food for him and his wife. On this the
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informant gave 20 Kgs. of flour and Rs.500/- and on 4.9.1990 sent
him to his house with the assurance that he would also soon visit
his house. It is further said that on 8.9.1990 the informant
started for Basaura and when he reached Aurangabad and was to
proceed towards Basaura, he heard some persons talking that
accused Shrikant Pathak with the help of his wife and daughter
Urmila Devi had seriously burnt his daughter-in-law on 3.9.1990
and kept her in the house for two days and then murdered her by
throttling and thereafter police reached there. On hearing their
talk, he went to meet his relative, who lives at Aurangabad and
in the next morning i.e. on 9.9.1990 alongwith his relative
reached village Basaura at 8 A.M. and there he saw his son-in-
law, who had lit funeral pyre, started weeping. The informant
then went to the police station and filed the written report
(Ext.4).
4. It appears that, in the meantime on 5.9.1990, on the
information of the Chaukidar that the daughter-in-law of Shrikant
Pathak had died of burn injuries and the dead body was lying in
the house, the Officer In-charge of Mali P.S. went to the house
of Shrikant Pathak and on a written report of Shrikant Pathak
U.D.Case No. 2/1990 (Ext.8) was drawn up. The police sent the
dead body for postmortem. During the course of investigation of
U.D.case, the informant filed his written report and hence, on
the basis of that report, this case was registered. The police
after investigation submitted charge sheet against the abovenamed
three accused persons including the appellant.
5. The appellant and the co-accused were charged under
section 302 I.P.C. and in alternative for the offence under
sections 304B and 498A I.P.C. and also for offence under sections
3 & 4 of the Dowry Prohibition Act. They pleaded not guilty to
the charges. Their defence is that the deceased was burnt on
account of accidental fire during cooking and that they never
demanded any dowry or tortured the deceased and have been falsely
implicated in this case.
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6. The prosecution examined in all 13 witnesses including
son-in-law (P.W.8) who had also been examined under section 164
Cr.P.C.. The defence also examined three witnesses.
7. The learned trial court after considering the evidence
on record acquitted the appellant and other co-accused of the
charge under section 302 I.P.C. and ¾ of the Dowry Prohibition
Act and convicted them under sections 304B, 498A I.P.C. and
sentenced them as mentioned above.
8. Learned Amicus Curiae submitted that the evidence on
record is not sufficient to prove that the deceased was tortured
for dowry and therefore, no offence under sections 304B, 498A
I.P.C. is established against the appellant.
9. At the out set it may be pointed out that in order to
establish the charge under section 304B I.P.C., the prosecution
is obliged to prove that (i) the death of a woman was caused by
burn or badly injury or had occurred otherwise than under normal
circumstances, (ii) such death was occurred within seven years of
marriage, (iii) the deceased was subjected to cruelty or
harassment by her husband or by any relative of her husband
either for or in connection with demand of dowry, (iv) the
deceased was subjected to such cruelty or harassment soon before
her death. If all the above circumstances are established then a
presumption should be drawn under section 113B of the Evidence
Act that such death is a dowry death.
10. In this case the evidence of Dr. Hanuman Ram (P.W.10) is
that on 6.9.1990 at 7 A.M. he had performed the postmortem
examination on the dead body of Smt. Kusum Devi (deceased of this
case). According to his evidence, he had found burn injuries on
front of chest, back of chest, both arms, face, front of scalp,
back of abdomen and both the legs and according to him, the
extent of burn injuries was 90% and the injuries were sufficient
in ordinary course to cause death. He has opined that the cause
of death was shock due to extensive burn and time elapsed since
death about 24 hours of his examination. Therefore, from the
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evidence of the doctor it is proved that Kusum Devi died of
burning.
11. The evidence of P.W.9 (informant) is that his daughter
Kusum Devi was married to Gayandutta Pathak on 12.6.1987. P.W.9
(son-in-law) in his deposition has also stated that he was
married to Kusum about four years ago and that the death had
occurred 8-9 months ago. He had deposed in court on 5.8.1991.
P.W.6 Sheopujan Pathak, the brother of the deceased, has stated
that his sister was married to Gayandutta Pathak in 1987. The
evidence of the doctor as already mentioned also shows that the
deceased died on or about 5.9.1990.
12. It is, therefore, also established that the deceased
Kusum Devi died within seven years of her marriage.
13. As regards the other circumstances, the evidence of
P.W.6 (Sheopujan Pathak), the brother of the deceased, P.W.7
Gopal Mishra, the maternal uncle of the deceased, P.W.9 Surajnath
Pathak (informant) only is relevant. P.W.8 Gayandutta Pathak in
his statement under section 164 Cr.P.C., of course, had stated
that his father and sister were not providing him and his wife
food but in his evidence in court he has not supported the
allegation. So, his evidence is not important to prove the other
circumstances.
14. P.W.9 has stated that Gauna of his daughter was
performed in 1988 and after Gauna the elder brother of his son-
in-law started demanding motorcycle and parents-in-law of his
daughter started torturing her for this and he came to know of
this from his daughter when she visited his place. He has further
stated that his daughter also used to inform him about torture
through letter. He has filed a letter (Ext.1) dated 13.6.1988
written by her in this connection. His evidence then is that once
he had visited the sasural of his daughter, then his daughter had
complained that her parents-in-law kept her box concealed and did
not allow her to wear her clothes. He has also stated that in-
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laws were not providing her clothes and so he used to send
clothes to her but they used to conceal even those clothes.
15. The evidence of the witness further is that on 3.9.1990
his son-in-law came to him and handed over a letter (Ext.1/1)
written by his daughter and told him that his parents have
stopped providing food to him and his wife and hence, he
(witness) gave him 20 Kgs. of flour and Rs.500/- in cash to him
and sent him to Ranchi on 4.9.1990. His evidence also is that on
8.9.1990 he was going to meet his daughter and at Aurangabad bus
stand he heard about the murder of his daughter.
16. P.W.6 has stated that after Gauna when his sister went
to her sasural, the in-laws started demanding a cycle and
Rs.500/- for purchase of a buffalo at the instance of
Vinayakdutta Pathak. He has named the appellant also, as a
person who had made the demand. His evidence then is that
accused Shrikant Pathak had got his daughter married in 1988 and
at that time the ornaments, clothes, utensils of his sister were
forcibly taken and given by Shrikant Pathak in the marriage of
his daughter as dowry. He has then stated that on 22.8.1990 on
the eve of Teej vestival he had gone to sasural of his sister and
at that time his sister had reported that her in-laws had kept
her box containing clothes in the fodder room where grains are
also kept and after search she had taken out the box and on this,
her parents-in-law taunted that when she had started going to the
room in which the grains were kept, she would also stealthily
sell the grains and saying this that they and the appellant
assaulted her. Her evidence then is that the mother-in-law of his
sister also told him to caution her as she had started opening
her mouth and further told that father-in-law who was angry with
her had gone to Buxar and no one knows what he would do after he
returned home. On this he (P.W.6) consoled his sister and then
returned to his house. This witnerss has also stated that on
3.9.1990 his brother-in-law came to their residence and informed
that after he (witness) returned from his house, from that date
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his and his sisters food have been stopped. He handed over a
letter written by his sister. His evidence also is that 20 Kgs.
of food and Rs.500/- in cash were given to his brother-in-law and
thereafter he learnt from his father that his sister was done to
death by burning and throttling by the accused persons including
the appellant.
17. P.W.7 has stated that the accused Vinayakdutta Pathak
used to demand motorcycle as karta of the family and for non-
fulfilment of the demand at the instance of Vinayakdutta Pathak,
the parents-in-law and Urmila Devi (appellant) used to torture
the deceased.
18. Thus, according to the above witnesses, after Gauna
ceremony, there was demand of motorcycle and for non-fulfilment
of demand there was torture to the deceased. But there is
absolutely no evidence that there was any torture for dowry by
the appellant or any of the accused soon before the death of the
deceased. The letters (Ext. 1 and 1/1) written by the deceased
also do not show that there was any torture for non-fulfilment of
demand of dowry. In fact in the letters there is no mention of
any dowry. The evidence of P.W.6 coupled with the evidence of
P.W.9 also shows that in the marriage of his daughter in 1988
accused Shrikant Pathak had taken away, against the wishes of the
deceased, her ornaments, clothes etc. Their evidence also is that
the box containing clothes of the deceased was also kept
concealed and as the deceased had searched it out, the accused
persons were annoyed and the evidence of P.W.6 further shows that
on 22.8.1990 he had gone to the house of the accused persons and
at that time mother-in-law had complained about the conduct of
the deceased to him and asked him to tell his sister to mend her
ways. The above letters also corroborate these facts. The letter
dated 13.6.1988 also shows that as the husband of the deceased
was not earning, she was being neglected. The letter (Ext.1/1)
which was taken by the husband of the deceased on 3.9.1990 to the
informant shows that as the deceased had taken out the box for
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wearing blause, the in-laws were annoyed, and from the time his
brother left her sasural, she and her husband were not being
provided with food. In this letter it is also mentioned that as
the victim had gone to the room where grains were kept her
parents-in-law taunted that she might sell the grains stealthily
and so they wanted to burn her and when she became ready to go to
the police station, she was prevented from going there.
19. Therefore, from the oral evidence of P.Ws. 6, 9 and the
above documents it appears that soon before the death of the
deceased, the deceased was tortured as the in-laws wanted clothes
from her but they were not obliged, and as they kept the box of
the deceased concealed and the deceased searched it out. The
above oral and documentary evidence do not at all show that for
non-fulfilment of any demand of dowry there was any torture soon
before the death. As the death occurred soon after the husband of
the deceased left for Ranchi, an interference on the basis of the
above evidence can, of course, be drawn that the death was caused
on account of incident regarding taking out the box from the room
where box was kept concealed, but there is no nexus between the
demand of dowry and the death of the deceased. As already
mentioned, to prove the offence of dowry death and for the
presumption under section 113B of the Evidence Act there must be
material to show that soon before her death the victim was
subjected to cruelty or harassment based on dowry demand. But
since this circumstance is lacking in this case, no offence under
section 304B I.P.C. is made out on the basis of the evidence on
record.
20. Hence, I find that the learned trial court was not
justified in convicting the appellant under section 304B I.P.C.
As regards 498A I.P.C., though evidence has been led to prove
that the victim was tortured for dowry, there is no direct
evidence of any witness in this regard. The evidence of P.Ws. 6,
9 shows that they had learnt about this from the deceased. But
such evidence though admissible in respect of the offence under
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section 304B by virtue of section 32(1) of the Evidence Act being
dying declaration, is not admissible for offence under section
498A. Dying declaration is not applicable to offence under
section 498A which do not relate to declarants death (vide
Gananth Pathak vs. State of Orissa, (2002) 2 SCC 619). Therefore,
on the evidence adduced by the prosecution no offence under
section 498A also is established against the appellant.
21. In view of the discussions made above, the conviction
and sentence passed by the trial court against the appellant is
set aside. The appeal is allowed.
( Rekha Kumari,J.)
PATNA HIGH COURT
The 20th May,2008
Surendra/N.A.F.R.