Full Judgment Text
CRIMINAL APPEAL NO. 574 OF 2012
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 574 OF 2012
PARVATI DEVI ….….. APPELLANT
VERSUS
THE STATE OF BIHAR NOW
STATE OF JHARKHAND & ORS. …….. RESPONDENTS
WITH
CRIMINAL APPEAL NO. 575 OF 2012
RAM SAHAY MAHTO …….. APPELLANT
VERSUS
STATE OF BIHAR NOW
STATE OF JHARKHAND & ORS. …….. RESPONDENTS
J U D G M E N T
HIMA KOHLI, J.
1. Ram Sahay Mahto, appellant in Criminal Appeal No.
575/2012 (hereinafter referred to as A-1) and his mother Parvati
Signature Not Verified
Digitally signed by
Vishal Anand
Date: 2021.12.17
16:18:35 IST
Reason:
Devi, appellant in Criminal Appeal No. 574/2012 (hereinafter
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CRIMINAL APPEAL NO. 574 OF 2012
referred to as A-3) are aggrieved by the common judgment
st
dated 1 May, 2007 passed by the High Court of Jharkhand
th
upholding the judgment of conviction dated 20 September,
1999 under Sections 304B and 201 read with Section 34 IPC
th
passed by the 5 Additional Sessions Judge, Giridih, sentencing
them and Nema Mahto (father of A-1 and husband of A-3) to
undergo rigorous imprisonment for a period of ten years and
three years respectively on each count with both the sentences
running concurrently. For the record, Nema Mahto had also
preferred an appeal registered as SLP (Crl.) No. 6955 of 2009
which abated on his expiring during its pendency.
2. The case of the prosecution as culled out from the
impugned judgment is that the informant, Bodhi Mahto (PW–3)
had got his daughter, Fulwa Devi, married to Ram Sahay Mahto
(A-1) in the year 1997 and within a few months of the marriage,
A-1, his father Nema Mahto (since deceased) and mother,
Parvati Devi (A-3) started to harass Fulwa Devi raising a
demand for a sum of Rs. 20,000/- in cash and a Rajdoot Motor
cycle. On expressing the inability of her parents to satisfy their
demands, she was brutally assaulted and threatened that A-1
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would be married off to another girl. Thereafter, on information
being received that his daughter had gone missing from her
matrimonial home, P.W.3 rushed to her home but finding her
traceless, he approached Birni Police Station and lodged a
missing complaint. A case was registered by the local police on
th
8 August, 1997 against A-1, A-2 and A-3 being Case No. 71 of
1997, for the offences under Sections 304/201/34 IPC. On
completion of the investigation, a charge-sheet was filed
against all the three accused for the aforesaid offences along
with Sections 3 and 4 of the Dowry Prohibition Act.
th
3. Five days after the FIR was lodged by PW-3 on 13 August,
1997, a skeleton was recovered from the banks of river
Barakar, at a distance of about one kilometer short of Village
Sirmadih which was assumed to be that of Fulwa Devi. Charges
were framed against the three accused under Sections
304B/34, 201/34 IPC. To bring home the guilt of the accused,
the prosecution examined seven witnesses, whereas the
accused examined six witnesses. The material witnesses
examined by the prosecution included Dr. B.P. Singh (PW-1), the
doctor who had conducted the post-mortem examination of the
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dead body, Sahdeo Mahto (PW-2), brother–in–law of the
deceased, Bodhi Mahto (PW-3), father of the deceased as well
as the informant, Jogeshwar Mahto (PW-4), brother of the
deceased, Tiki Devi (PW-5), wife of PW–4 (sister-in-law/Bhabhi of
the deceased) and Suresh Prasad Singh (PW-6), the
Investigating Officer.
4. After a critical analysis of the deposition of the aforesaid
witnesses, the High Court summarized their testimony. Dr.
Bhupendra Prasad Singh (PW–1) deposed that he had
conducted the autopsy of the dead body produced before him
as that of Fulwa Devi and found the body to be highly
decomposed. The left leg, left forearm and left hand were
absent. Similarly, the right upper limb and right lower limb
below the knee joint were absent. No evidence of any ante-
mortem injury was found. The time that had elapsed till the
post-mortem examination was conducted, was assessed as one
week.
5. Bodhi Mahto (PW-3), the informant and the father of the
deceased testified that his deceased daughter was married to
A-1 and within a few months of her marriage, the accused had
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started maltreating her and complained about inadequate
dowry given by her parents. They had demanded cash of Rs.
20,000/- and a Rajdoot Motor cycle from his daughter and had
threatened that if their demand was not met, she would be
exterminated. Fulwa Devi had shared this demand of additional
dowry with her parents, brother and sister-in-law. A similar
message was conveyed to PW-3 by his son-in-law, Sahadeo
Mahto (PW-2) with whom the accused had raised the issue of
insufficient dowry. PW–3 deposed that when he went to the
matrimonial home of his daughter in the month of “Ashar”, A-1
and his father (A-2, since deceased) had cautioned him that if
he did not fulfill their demand, they would throw out Fulwa Devi
from the matrimonial home and get A-1 married to someone
else. It was within a period of fifteen days of the aforesaid
incident that PW–3 received information from PW-2 about his
daughter having gone missing from her matrimonial home. On
rushing to her matrimonial home and looking all over for her,
when she could not be traced, an FIR was lodged with the local
Police as PW – 3 stated that he had reason to believe that the
accused had murdered her and concealed her body
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somewhere. It was only after five days of lodging of the
complaint that the dead body of the deceased was recovered.
PW–2 and PW–3 went to the spot where the dead body was
recovered. On seeing the face that was partly intact and by
identifying the clothes, PW-3 identified the body as that of his
daughter. In the cross-examination conducted on behalf of the
accused, PW-3 stood firm by his testimony, that remained
unshaken.
6. Sahdeo Mahto (PW-2), son-in-law of PW–3 and Jogeshwar
Mahto (PW-4) son of PW–3 testified on the very same lines as
PW-3. They deposed that Fulwa Devi was being ill-treated and
besides demanding dowry from her, she had been threatened
that if the demand for dowry was not fulfilled, her husband
would get re-marrried to someone else. PW–4 stated that
during her visit to her parental home, Fulwa Devi had informed
her family members about the demands of dowry made on her
by all the accused and the threat extended to her that if their
demands were not met, they would go in for a second marriage
of their son, A-1.
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7. Both the witnesses narrated as to how they came to know
about the deceased going missing from her matrimonial home.
PW–2 deposed that he came to know from third parties that
Fulwa Devi was missing from her matrimonial home and her
dead body had been thrown into Barakar river after she was
murdered. He immediately informed his father-in-law, PW–3
who set out in search of his daughter on the banks of the river.
PW-3 made an extensive search along with his son-in-law, PW-2
and his son, PW-4 and also informed the Police. The rest of the
version of both the witnesses on the aspect of recovery of a
dead body from the banks of the nearby river and identification
by them of the body as that of Fulwa Devi, remained consistent
with one corroborating the other.
8. The High Court has observed that the evidence of Sahdeo
Mahto, PW–2, is relevant to the extent that prior to her death,
Fulwa Devi had spoken to him about the dowry demand made
on her by the accused persons. He was not an eye-witness to
the incident but stated on hearsay that he came to know from a
villager that the dead body of Fulwa Devi was thrown in Barakar
river after she was murdered by the accused. The said witness
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did identify the dead body as that of Fulwa Devi on the basis of
the clothes that she was wearing. Jogeshwar Mahto, PW-4 has
corroborated the testimony of his father, PW–3 on the aspect of
demand of dowry and the fact that Fulwa Devi had
communicated this at her parental home during one of her
visits. All the three witnesses took a common stand that
demands of dowry were made on the deceased close to the
time that she had gone missing from her matrimonial home and
that she was last residing at her matrimonial home when she
had suddenly vanished one fine day.
9. The High Court has adversely commented on the slip shod
manner in which the investigation was conducted by the
Investigating Officer, Suresh Prasad Singh (PW- 6) who recorded
the statements of the witnesses, prepared the inquest report of
Fulwa Devi, testified about the two places of occurrence
namely, the matrimonial home of the deceased at village Karni
and the spot at the bank of river Barakar where the dead body
was found, but failed to record the statements of any of the
residents of the village that comprised of only twenty-five
houses including the statement of the neighbours of the
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accused; nor did he make any concerted effort to trace the
dead body of the deceased. It was only on persistent efforts
made by the father, brother and brother-in-law of the deceased
viz., PW-3, PW-4 and PW-2 respectively, that the dead body was
ultimately located after almost a week from the date Fulwa
Devi had gone missing from her matrimonial home by which
time, the body had got decomposed to a large extent.
10. Linking the chain of circumstantial evidence from the point
when Fulwa Devi had informed her parents and relations about
the dowry demands made upon her by the accused within a
few months of her marriage to the stage when she had
suddenly gone missing from her matrimonial home and finally,
when her body was recovered on the banks of river Barakar,
the High Court concurred with the findings returned by the trial
Court for inculpating all the three accused on the following
basis:
“( i) The deceased Fulwa Devi was
married with Ram Sahay Mahto S/o.
Nema Mahto and Parvati Devi
within seven years of her death;
(ii) The dead body of the deceased was
found in river Barakar on 13.8.97
and there are consistentevidence
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that the deceased died otherwise
than under normal circumstances;
(iii) The deceased was at her Sasural
prior to her death;
(iv) The deceased was traceless but
neither information was given to her
parents nor information was given
to the police;
(v) The deceased was subjected to
assault and harassment by the
accused persons who are husband
and his other relatives;
(vi) Such cruelty and harassment was
in connection with demand of
dowry;
(vii) Such cruelty and harassment was
made soon before her death.”
11. The High Court agreed with the view expressed by the trial
Court that the accused have miserably failed to explain the
circumstances under which the deceased had vanished from
her matrimonial home and has outrightly rejected the defence
set up by the accused that she was not residing with her
husband and in-laws; rather, she was living with her brother-in-
law, PW–2. Another plea taken by the accused that the dead
body recovered from the banks of river Barakar was
unidentifiable, was also turned down, having regard to the fact
that the accused failed to explain the circumstance in which the
deceased went missing from her matrimonial home and
became traceless. The conduct of the accused of failing to
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inform the family members or the police about the deceased
going missing from her matrimonial home and failure on their
part to make any effort to search her out, were also held
against them. In fact, PW-4, brother of the deceased had
categorically deposed that when he had gone to her
matrimonial home, he found it to be locked and all the accused
were absconding just after the occurrence which was a critical
circumstance that was held against them.
12. For examining the case of the prosecution and the
evidence adduced by the accused, we may extract below the
relevant provision of Section 304B IPC that relates to “dowry
death”: -
“304B 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 for
dowry, such death shall be called “dowry death”, and
such husband or relative shall be deemed to have
caused her death.
Explanation.—For the purpose of this sub-section,
“dowry” shall have the same meaning as in section 2
of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be
punished with imprisonment for a term which shall not
be less than seven years but which may extend to
imprisonment for life.”
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13. As can be seen from the aforesaid provision, for convicting
the accused for an offence punishable under Section 304B IPC,
the following pre-requisites must be met:
(i) that the death of a woman must have been caused
by burns or bodily injury or occured otherwise than
under normal circumstance;
(ii) that such a death must have occurred within a period
of seven years of her marriage;
(iii) that the woman must have been subjected to cruelty
or harassment at the hands of her husband, soon
before her death; and
(iv) that such a cruelty or harassment must have been for
or related to any demand for dowry.
14. Coming next to Section 113B of the Indian Evidence Act,
1872, the same refers to a presumption relating to a dowry
death and is phrased as below:-
“ 113B. Presumption as to dowry death -
When the question is whether a person has
committed the dowry death of a woman and it is
shown that soon before her death such woman has
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.
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Explanation - For the purposes of this section,
“dowry death” shall have the same meaning as in
section 304B of the Indian Penal Code (45 of 1860).”
The explanation appended to Section 304B IPC states that the
word “dowry” shall have the same meaning as provided in
Section 2 of the Dowry Prohibition Act, 1961 which reads as
follows:
“ 2. Definition of ‘dowry’ - In this Act,
“dowry” means any property or valuable
security given or agreed to be given either
directly or indirectly –
(a) by one party to a marriage to the other
party to the marriage; or
(b) by the parents of either party to a
marriage by any other person, to either
party to the marriage or to any other
person;
at or before or any time after the marriage in
connection with the marriage of the said
parties, but does not include dower or mahr in
the case of persons to whom the Muslim
Personal law (Shariat) applies.”
15. The import of the aforesaid provisions has been explained
in several decisions of this Court. In Bansi Lal vs. State of
1
Haryana , it has been held that:
“17. While considering the case under Section
498-A (Sic. Section 304-B), cruelty has to be proved
during the close proximity of time of death and it
should be continuous and such continuous
harassment, physical or mental, by the accused
(2011) 11 SCC 359
1
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CRIMINAL APPEAL NO. 574 OF 2012
should make life of the deceased miserable which
may force her to commit suicide.”
2
16. In Maya Devi and Anr. vs. State of Haryana , it was
held that:
“23. To attract the provisions of Section 304-B,
one of the main ingredients of the offence which is
required to be established is that “soon before her
death” she was subjected to cruelty or harassment
“for, or in connection with the demand for dowry”.
The expression “soon before her death” used in
Section 304-IPC and Section 113-B of the Evidence
Act is present with the idea of proximity test. In
fact, the learned Senior Counsel appearing for the
appellants submitted that there is no proximity for
the alleged demand of dowry and harassment.
With regard to the said claim, we shall advert to
while considering the evidence led in by the
prosecution. Though the language used is “soon
before her death”, no definite period has been
enacted and the expression “soon before her
death” has not been defined in both the
enactments. Accordingly, the determination of the
period which can come within the term “soon
before her death” is to be determined by the
courts, depending upon the facts and
circumstances of each case. However, the said
expression would normally imply that the interval
should not be much between the cruelty or
harassment concerned and the death in question.
In other words, there must be existence of a
proximate and live link between the effect of
cruelty based on dowry demand and the death
concerned. If the alleged incident of cruelty is
remote in time and has become stale enough not
to disturb the mental equilibrium of the women
concerned, it would be of no consequence.”
(2015) 17 SCC 405
2
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3
[Also refer to G.V. Siddaramesh v. State of Karnataka and
4
Ashok Kumar vs. State of Haryana ]
17. Section 304B IPC read in conjunction with Section 113B of
the Evidence Act leaves no manner of doubt that once the
prosecution has been able to demonstrate that a woman has
been subjected to cruelty or harassment for or in connection
with any demand for dowry, soon before her death, the Court
shall proceed on a presumption that the persons who have
subjected her to cruelty or harassment in connection with the
demand for dowry, have caused a dowry death within the
meaning of Section 304B IPC. The said presumption is,
however, rebuttable and can be dispelled on the accused being
able to demonstrate through cogent evidence that all the
ingredients of Section 304B IPC have not been satisfied.
18. In the instant case, despite the shoddy investigation
conducted by the prosecution, we are of the view that the
circumstances set out in Section 304B of the IPC have been
established in the light of the fact that the deceased, Fulwa
Devi had gone missing from her matrimonial home within a few
( 2010) 3 SCC 152
3
(2010) 12 SCC 350
4
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CRIMINAL APPEAL NO. 574 OF 2012
months of her marriage and immediately after demands of
dowry were made on her and that her death had occurred
under abnormal circumstances, such a death would have to be
charactarized as a “dowry death”.
19. Recovery of the body from the banks of the river clearly
indicates that Fulwa Devi had died under abnormal
circumstances that could only be explained by her husband and
in-laws, as she was residing at her matrimonial home when she
suddenly disappeared and no plausible explanation was offered
for her disappearance. The plea raised on behalf of the
accused that the body recovered from the banks of Barakar
river was unidentifiable, is devoid of merits when PW-3, father
of the deceased testified that he could recognize the dead body
as that of Fulwa Devi, from a part of the face that had remained
intact and from the clothes that were found on the body. As
regards A-1, the High Court and the trial Court have rightly
raised a presumption against him under Section 113B of the
Indian Evidence Act which prescribes that the Court shall
presume that a person has caused a dowry death of a woman if
it is shown that soon before her death, she had been subjected
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CRIMINAL APPEAL NO. 574 OF 2012
by such person to cruelty or harassment for or in connection
with any demand for dowry. How far could this be held against
A-3, will be discussed later.
20. The plea taken by A-1 that he was not present in the
village at the time of the occurrence and was at Kolkata, has
been rightly rejected as meritless. Similarly, the testimonies of
Babulal Yadav, DW-3 and Basudeo Mahto, DW-4 were
disbelieved, particularly since DW–3 claimed to be the uncle of
A-1, but could not even furnish the name of his nephew’s wife
and DW–4, cousin of A-1 had deposed that he did not know
about his marriage or whether his wife was dead or alive.
Neither of the two witnesses could produce any documentary
evidence in support of their stand that at the relevant time, A-1,
was working in Kolkata. DW–6, Kauteshwar Yadav, who hails
from the village where the said accused resided but has
deposed that he himself is not a permanent resident thereof,
miserably failed to establish an illicit relationship between the
deceased and her brother–in-law, Sahdeo Mahto (PW–2) or that
she was living with him and not residing at her matrimonial
home.
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21. As discussed above, the case of the prosecution rests
solely on circumstantial evidence. No eye witness has been
produced who could testify as to how the body of the deceased
was found on the banks of river Barakar. From the
circumstances narrated above, there can be two hypothesis.
One is that the deceased was done away with within the four
walls of her matrimonial home, her dead body was smuggled
out and dumped into the river. The second pre-supposition
would be that the deceased was alive when she was taken to
the river-side under some pretext and pushed in, leading to her
death by drowning. If the first assumption is taken to be
correct, then surely, some villager would have seen the
accused persons carrying the dead body to the river where it
was finally dumped. However, the prosecution has not
produced any villager who was a witness to the body of the
deceased being taken out of the matrimonial home and carried
to the river. Therefore, this version would have to be discarded
in favour of the second one which is that the deceased was
alive, when she was accompanied to the river and then she was
forcibly pushed in and could not emerge alive from the watery
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grave. The latter assumption also gains strength from the post
mortem report which records that there were no signs of any
ante mortem injury on the body. If the deceased was killed in
the house, then the body would certainly have revealed some
signs of struggle.
22. There is sufficient evidence brought on record to inculpate
Ram Sahay Mahto, A-1 (husband of the deceased). The
circumstances put together, unerringly point to his guilt in
extinguishing the life of his wife within a few months of the
marriage on her failing to satisfy the demands of dowry. In our
view, the impugned judgment and order of sentence imposed
on A-1 does not deserve interference and is maintained.
Criminal Appeal No. 575 of 2012 filed by A-1 is accordingly
dismissed. The said appellant who is presently on bail, is
directed to surrender before the Trial Court/Superintendent of
Jail within four weeks to undergo the remaining period of his
sentence.
23. As for Parvati Devi, A-3 (Mother-in-law), from the evidence
on record only certain omnibus allegations have been made
against her with respect to dowry demands. Learned counsel
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for the respondent-State has not been able to indicate any
specific allegations, nor point to any specific evidence or
testimony against her. In fact, in the only direct evidence
before the Court, PW-3 (informant and father of the victim)
mentions that A-2 threatened to harm the deceased. In view of
the above, we are of the opinion that it is necessary to interfere
with the findings of the Courts below convicting A-3 (appellant
in Criminal Appeal No. 574 of 2012) for the offence under
Sections 304B and 201 read with Section 34, IPC. The said
appeal filed by A-3 is accordingly allowed. She is directed to be
released forthwith, if not required to be detained in any other
case.
................................. CJI.
[N. V. RAMANA]
.................................. .J.
[SURYA KANT]
................................... J.
[HIMA KOHLI]
New Delhi,
December 17, 2021
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