{"id":10586,"date":"2008-05-20T00:00:00","date_gmt":"2008-05-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/urmila-devi-vs-state-of-bihar-on-20-may-2008"},"modified":"2018-07-21T19:15:00","modified_gmt":"2018-07-21T13:45:00","slug":"urmila-devi-vs-state-of-bihar-on-20-may-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/urmila-devi-vs-state-of-bihar-on-20-may-2008","title":{"rendered":"Urmila Devi vs State Of Bihar on 20 May, 2008"},"content":{"rendered":"
Patna High Court<\/div>\n
Urmila Devi vs State Of Bihar on 20 May, 2008<\/div>\n
Author: Smt. Rekha Kumari<\/div>\n
                     CRIMINAL APPEAL No.67 OF 1993\n\n    Against the judgment and order dated 12.2.1993 and 16.2.1003\n    passed by Sri Sarju Prasad, 3rd Addl. Sessions Judge,\n    Aurangabad in S.Tr.No. 11 of 1991\/ 19 of 1991.\n\n\n    URMILA DEVI------------------------------------------Appellant\n                          Versus\n    STATE OF BIHAR---------------------------------------Respondent<\/pre>\n
    For the appellant : Mr. Ranbir Singh, Amicus Curiae
\n    For the respondent: A.P.P.\n<\/p>\n
                           P R E S E N T<\/p>\n
                  THE HON’BLE JUSTICE SMT. REKHA KUMARI<\/p>\n
Rekha Kumari,J.,       This appeal is directed against the judgment dated<\/p>\n
    12.2.1993 passed by the 3rd Addl. Sessions Judge, Aurangabad in<\/p>\n
    S.Tr.No. 11 of 1991\/ 19 of 1991 whereby he has convicted the<\/p>\n
    appellant Urmila Devi under sections 498A and 304B of the Indian<\/p>\n
    Penal Code and sentenced her to undergo R.I. for seven years for<\/p>\n
    the offence under section 304B I.P.C. and R.I. for two years for<\/p>\n
    the offence under section 498A I.P.C. and has directed that the<\/p>\n
    sentences would run concurrently.\n<\/p>\n
    2.         There      were     three    accused      in     this    case,      namely,<\/p>\n
    1. Shrikant Pathak, 2. Shanti Devi, Wife of Shrikant Pathak and<\/p>\n
    3.   Urmila    Devi    (appellant),        D\/o     Shrikant      Pathak.    All   were<\/p>\n
    convicted and sentenced as aforesaid.\n<\/p>\n
    3.         The    prosecution       case    as   disclosed       from   the   written<\/p>\n
    report    dated     9.9.1990       of   Surajnath      Pathak      (informant)      of<\/p>\n
    Irgutala, Ranchi is that his daughter Kusum Devi was married to<\/p>\n
    Gayandutta     Pathak,       S\/o   Shrikant      Pathak     of    village     Basaura,<\/p>\n
    District Aurangabad in 1987. At the time of marriage he had given<\/p>\n
    dowry    according    to     his   means,    but    after     Gauna,    Vinayakdutta<\/p>\n
    Pathak, the elder brother of his son-in-law, claiming himself to<\/p>\n
    be the karta of the family, started demanding cycle etc. and<\/p>\n
    torturing his daughter for that. Accused Srikant Pathak also at<\/p>\n
    his instance harassed his daughter. On 3.9.1990 at 9 A.M. his<\/p>\n
    son-in-law came to his residence at Ranchi and gave him a letter<\/p>\n
    of his daughter and complained that his father had discontinued<\/p>\n
    to make provisions of food for him and his wife. On this the
\n                              2<\/span><\/p>\n
informant gave 20 Kgs. of flour and Rs.500\/- and on 4.9.1990 sent<\/p>\n
him to his house with the assurance that he would also soon visit<\/p>\n
his house. It is further said that on 8.9.1990 the informant<\/p>\n
started for Basaura and when he reached Aurangabad and was to<\/p>\n
proceed    towards   Basaura,    he    heard   some    persons   talking    that<\/p>\n
accused Shrikant Pathak with the help of his wife and daughter<\/p>\n
Urmila Devi had seriously burnt his daughter-in-law on 3.9.1990<\/p>\n
and kept her in the house for two days and then murdered her by<\/p>\n
throttling and thereafter police reached there. On hearing their<\/p>\n
talk, he went to meet his relative, who lives at Aurangabad and<\/p>\n
in the next morning       i.e. on       9.9.1990   alongwith his relative<\/p>\n
reached village Basaura at 8 A.M. and there he saw his son-in-<\/p>\n
law, who had lit funeral pyre, started weeping. The informant<\/p>\n
then went to the police station and filed the written report<\/p>\n
(Ext.4).\n<\/p>\n
4.         It appears that, in the meantime on 5.9.1990, on the<\/p>\n
information of the Chaukidar that the daughter-in-law of Shrikant<\/p>\n
Pathak had died of burn injuries and the dead body was lying in<\/p>\n
the house, the Officer In-charge of Mali P.S. went to the house<\/p>\n
of Shrikant Pathak and on a written report of Shrikant Pathak<\/p>\n
U.D.Case No. 2\/1990 (Ext.8) was drawn up. The police sent the<\/p>\n
dead body for postmortem. During the course of investigation of<\/p>\n
U.D.case, the informant filed his written report and hence, on<\/p>\n
the basis of that report, this case was registered. The police<\/p>\n
after investigation submitted charge sheet against the abovenamed<\/p>\n
three accused persons including the appellant.<\/p>\n
5.         The   appellant   and      the   co-accused   were charged      under<\/p>\n
section 302 I.P.C. and          in alternative        for the offence      under<\/p>\n
sections 304B and 498A I.P.C. and also for offence under sections<\/p>\n
3 & 4 of the Dowry Prohibition Act. They pleaded not guilty to<\/p>\n
the charges. Their defence is that the deceased was burnt on<\/p>\n
account of accidental fire during cooking and that they never<\/p>\n
demanded any dowry or tortured the deceased and have been falsely<\/p>\n
implicated in this case.\n<\/p>\n
                                     3<\/span><\/p>\n
6.          The prosecution examined in all 13 witnesses including<\/p>\n
son-in-law (P.W.8) who had also been examined under section 164<\/p>\n
Cr.P.C.. The defence also examined three witnesses.<\/p>\n
7.          The learned trial court after considering the evidence<\/p>\n
on record acquitted the appellant and other co-accused of the<\/p>\n
charge under section 302 I.P.C. and \u00be of the Dowry Prohibition<\/p>\n
Act and convicted them              under sections        304B, 498A I.P.C.          and<\/p>\n
sentenced them as mentioned above.\n<\/p>\n
8.          Learned Amicus Curiae submitted that the evidence on<\/p>\n
record is not sufficient to prove that the deceased was tortured<\/p>\n
for dowry and therefore, no offence under sections 304B, 498A<\/p>\n
I.P.C. is established against the appellant.<\/p>\n
9.          At the out set it may be pointed out that in order to<\/p>\n
establish the charge under section 304B I.P.C., the prosecution<\/p>\n
is obliged to prove that (i) the death of a woman was caused by<\/p>\n
burn or badly injury or had occurred otherwise than under normal<\/p>\n
circumstances, (ii) such death was occurred within seven years of<\/p>\n
marriage,      (iii)      the   deceased        was    subjected     to    cruelty    or<\/p>\n
harassment by her husband or by any relative of her husband<\/p>\n
either   for    or   in    connection      with       demand   of   dowry,    (iv)   the<\/p>\n
deceased was subjected to such cruelty or harassment soon before<\/p>\n
her death. If all the above circumstances are established then a<\/p>\n
presumption should be drawn under section 113B of the Evidence<\/p>\n
Act that such death is a dowry death.\n<\/p>\n
10.         In this case the evidence of Dr. Hanuman Ram (P.W.10) is<\/p>\n
that   on   6.9.1990      at    7   A.M.   he    had    performed    the     postmortem<\/p>\n
examination on the dead body of Smt. Kusum Devi (deceased of this<\/p>\n
case). According to his evidence, he had found burn injuries on<\/p>\n
front of chest, back of chest, both arms, face, front of scalp,<\/p>\n
back of abdomen and both the legs and according to him, the<\/p>\n
extent of burn injuries was 90% and the injuries were sufficient<\/p>\n
in ordinary course to cause death. He has opined that the cause<\/p>\n
of death was shock due to extensive burn and time elapsed since<\/p>\n
death about 24 hours of his examination. Therefore, from the
\n                                   4<\/span><\/p>\n
evidence of the doctor it is proved that Kusum Devi died of<\/p>\n
burning.\n<\/p>\n
11.        The evidence of P.W.9 (informant) is that his daughter<\/p>\n
Kusum Devi was married to Gayandutta Pathak on 12.6.1987. P.W.9<\/p>\n
(son-in-law)    in    his   deposition          has   also   stated    that   he   was<\/p>\n
married to Kusum about four years ago and that the death had<\/p>\n
occurred 8-9 months ago. He had deposed in court on 5.8.1991.<\/p>\n
P.W.6 Sheopujan Pathak, the brother of the deceased, has stated<\/p>\n
that his sister was married to Gayandutta Pathak in 1987. The<\/p>\n
evidence of the doctor as already mentioned also shows that the<\/p>\n
deceased died on or about 5.9.1990.\n<\/p>\n
12.        It is, therefore, also established that the deceased<\/p>\n
Kusum Devi died within seven years of her marriage.<\/p>\n
13.        As   regards     the       other   circumstances,     the    evidence    of<\/p>\n
P.W.6 (Sheopujan Pathak), the brother of the deceased, P.W.7<\/p>\n
Gopal Mishra, the maternal uncle of the deceased, P.W.9 Surajnath<\/p>\n
Pathak (informant) only is relevant. P.W.8 Gayandutta Pathak in<\/p>\n
his statement under section 164 Cr.P.C., of course, had stated<\/p>\n
that his father and sister were not providing him and his wife<\/p>\n
food but in his evidence in court he has not supported the<\/p>\n
allegation. So, his evidence is not important to prove the other<\/p>\n
circumstances.\n<\/p>\n
14.        P.W.9     has    stated       that    Gauna   of    his     daughter    was<\/p>\n
performed in 1988 and after Gauna the elder brother of his son-<\/p>\n
in-law started demanding motorcycle and parents-in-law of his<\/p>\n
daughter started torturing her for this and he came to know of<\/p>\n
this from his daughter when she visited his place. He has further<\/p>\n
stated that his daughter also used to inform him about torture<\/p>\n
through letter. He has filed a letter (Ext.1) dated 13.6.1988<\/p>\n
written by her in this connection. His evidence then is that once<\/p>\n
he had visited the sasural of his daughter, then his daughter had<\/p>\n
complained that her parents-in-law kept her box concealed and did<\/p>\n
not allow her to wear her clothes. He has also stated that in-
\n                                      5<\/span><\/p>\n
laws were not providing her clothes and so he used to send<\/p>\n
clothes to her but they used to conceal even those clothes.<\/p>\n
15.         The evidence of the witness further is that on 3.9.1990<\/p>\n
his son-in-law came to him and handed over a letter (Ext.1\/1)<\/p>\n
written     by   his    daughter         and       told   him    that   his   parents      have<\/p>\n
stopped     providing      food      to        him   and    his    wife   and      hence,       he<\/p>\n
(witness) gave him 20 Kgs. of flour and Rs.500\/- in cash to him<\/p>\n
and sent him to Ranchi on 4.9.1990. His evidence also is that on<\/p>\n
8.9.1990 he was going to meet his daughter and at Aurangabad bus<\/p>\n
stand he heard about the murder of his daughter.<\/p>\n
16.         P.W.6 has stated that after Gauna when his sister went<\/p>\n
to    her   sasural,      the    in-laws            started      demanding    a    cycle    and<\/p>\n
Rs.500\/-     for       purchase          of    a     buffalo      at    the   instance          of<\/p>\n
Vinayakdutta       Pathak.      He       has    named      the    appellant       also,    as    a<\/p>\n
person who had made the demand.                            His evidence then is that<\/p>\n
accused Shrikant Pathak had got his daughter married in 1988 and<\/p>\n
at that time the ornaments, clothes, utensils of his sister were<\/p>\n
forcibly taken and given by Shrikant Pathak in the marriage of<\/p>\n
his daughter as dowry. He has then stated that on 22.8.1990 on<\/p>\n
the eve of Teej vestival he had gone to sasural of his sister and<\/p>\n
at that time his sister had reported that her in-laws had kept<\/p>\n
her box containing clothes in the fodder room where grains are<\/p>\n
also kept and after search she had taken out the box and on this,<\/p>\n
her parents-in-law taunted that when she had started going to the<\/p>\n
room in which the grains were kept, she would also stealthily<\/p>\n
sell the grains and saying this that they and the appellant<\/p>\n
assaulted her. Her evidence then is that the mother-in-law of his<\/p>\n
sister also told him to caution her as she had started opening<\/p>\n
her mouth and further told that father-in-law who was angry with<\/p>\n
her had gone to Buxar and no one knows what he would do after he<\/p>\n
returned home. On this he (P.W.6) consoled his sister and then<\/p>\n
returned to his house. This witnerss has also stated that on<\/p>\n
3.9.1990 his brother-in-law came to their residence and informed<\/p>\n
that after he (witness) returned from his house, from that date
\n                                 6<\/span><\/p>\n
his and his sisters food have been stopped. He handed over a<\/p>\n
letter written by his sister. His evidence also is that 20 Kgs.<\/p>\n
of food and Rs.500\/- in cash were given to his brother-in-law and<\/p>\n
thereafter he learnt from his father that his sister was done to<\/p>\n
death by burning and throttling by the accused persons including<\/p>\n
the appellant.\n<\/p>\n
17.          P.W.7 has stated that the accused Vinayakdutta Pathak<\/p>\n
used to demand motorcycle as karta of the family and for non-<\/p>\n
fulfilment of the demand at the instance of Vinayakdutta Pathak,<\/p>\n
the parents-in-law and Urmila Devi (appellant) used to torture<\/p>\n
the deceased.\n<\/p>\n
18.          Thus,   according      to   the   above    witnesses,       after   Gauna<\/p>\n
ceremony, there was demand of motorcycle and for non-fulfilment<\/p>\n
of    demand    there   was    torture    to   the     deceased.    But    there   is<\/p>\n
absolutely no evidence that there was any torture for dowry by<\/p>\n
the appellant or any of the accused soon before the death of the<\/p>\n
deceased. The letters (Ext. 1 and 1\/1) written by the deceased<\/p>\n
also do not show that there was any torture for non-fulfilment of<\/p>\n
demand of dowry. In fact in the letters there is no mention of<\/p>\n
any dowry. The evidence of P.W.6 coupled with the evidence of<\/p>\n
P.W.9 also shows that in the marriage of his daughter in 1988<\/p>\n
accused Shrikant Pathak had taken away, against the wishes of the<\/p>\n
deceased, her ornaments, clothes etc. Their evidence also is that<\/p>\n
the    box     containing     clothes    of    the     deceased    was    also   kept<\/p>\n
concealed and as the deceased had searched it out, the accused<\/p>\n
persons were annoyed and the evidence of P.W.6 further shows that<\/p>\n
on 22.8.1990 he had gone to the house of the accused persons and<\/p>\n
at that time mother-in-law had complained about the conduct of<\/p>\n
the deceased to him and asked him to tell his sister to mend her<\/p>\n
ways. The above letters also corroborate these facts. The letter<\/p>\n
dated 13.6.1988 also shows that as the husband of the deceased<\/p>\n
was not earning, she was being neglected. The letter (Ext.1\/1)<\/p>\n
which was taken by the husband of the deceased on 3.9.1990 to the<\/p>\n
informant shows that as the deceased had taken out the box for
\n                                   7<\/span><\/p>\n
wearing blause, the in-laws were annoyed, and from the time his<\/p>\n
brother left her sasural, she and her husband were not being<\/p>\n
provided with food. In this letter it is also mentioned that as<\/p>\n
the victim had gone to the room where grains were kept her<\/p>\n
parents-in-law taunted that she might sell the grains stealthily<\/p>\n
and so they wanted to burn her and when she became ready to go to<\/p>\n
the police station, she was prevented from going there.<\/p>\n
19.          Therefore, from the oral evidence of P.Ws. 6, 9 and the<\/p>\n
above documents it appears that soon before the death of the<\/p>\n
deceased, the deceased was tortured as the in-laws wanted clothes<\/p>\n
from her but they were not obliged, and as they kept the box of<\/p>\n
the deceased concealed and the deceased searched it out. The<\/p>\n
above oral and documentary evidence do not at all show that for<\/p>\n
non-fulfilment of any demand of dowry there was any torture soon<\/p>\n
before the death. As the death occurred soon after the husband of<\/p>\n
the deceased left for Ranchi, an interference on the basis of the<\/p>\n
above evidence can, of course, be drawn that the death was caused<\/p>\n
on account of incident regarding taking out the box from the room<\/p>\n
where box was kept concealed, but there is no nexus between the<\/p>\n
demand    of    dowry    and     the    death    of    the     deceased.      As    already<\/p>\n
mentioned,      to   prove     the     offence    of   dowry     death     and     for   the<\/p>\n
presumption under section 113B of the Evidence Act there must be<\/p>\n
material     to   show    that    soon    before       her   death   the      victim     was<\/p>\n
subjected to cruelty or harassment based on dowry demand. But<\/p>\n
since this circumstance is lacking in this case, no offence under<\/p>\n
section 304B I.P.C. is made out on the basis of the evidence on<\/p>\n
record.\n<\/p>\n
20.          Hence, I find that the learned trial court was not<\/p>\n
justified in convicting the appellant under section 304B I.P.C.<\/p>\n
As regards 498A I.P.C., though evidence has been led to prove<\/p>\n
that   the     victim    was   tortured     for       dowry,    there    is    no   direct<\/p>\n
evidence of any witness in this regard. The evidence of P.Ws. 6,<\/p>\n
9 shows that they had learnt about this from the deceased. But<\/p>\n
such evidence though admissible in respect of the offence under
\n                               8<\/span><\/p>\n
section 304B by virtue of section 32(1) of the Evidence Act being<\/p>\n
dying declaration, is not admissible for offence under section<\/p>\n
498A.   Dying    declaration      is   not   applicable   to   offence    under<\/p>\n
section   498A   which   do    not     relate   to   declarants   death   (vide<\/p>\n
Gananth Pathak vs. State of Orissa, (2002) 2 SCC 619). Therefore,<\/p>\n
on the evidence adduced           by the     prosecution no offence under<\/p>\n
section 498A also is established against the appellant.<\/p>\n
21.       In view of the discussions made above, the conviction<\/p>\n
and sentence passed by the trial court against the appellant is<\/p>\n
set aside. The appeal is allowed.\n<\/p>\n<\/p>\n
                                                ( Rekha Kumari,J.)<\/p>\n
PATNA HIGH COURT
\nThe 20th May,2008
\nSurendra\/N.A.F.R.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Urmila Devi vs State Of Bihar on 20 May, 2008 Author: Smt. Rekha Kumari 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-10586","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nUrmila Devi vs State Of Bihar on 20 May, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/urmila-devi-vs-state-of-bihar-on-20-may-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Urmila Devi vs State Of Bihar on 20 May, 2008 - 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