CRIMINAL APPELL AT E JURISDICTION
vs.
WITH
O R
D E R
These appeals arise from the following facts:
Sudhia Devi deceased was married with Hare Ra m Jha about 3-4
years before the incident happened and was pregnant at the time of the
occurrence. On 22 nd September, 1997. P W.5 – Meena Devi, Sudhia Devi's
aunt, received information that Sudhia Devi was being beaten by her
husband and his parents and sisters. Meena Devi along with her relatives
rushed to Sudhia Devi's ho me and was told by her mother-in-law Meera Devi and her daughters Asha Devi and Mithilesh Devi that she was in the
process of delivering a child. Meena Devi, however, insisted that she
should be allowed to see Sudhia Devi on which she was restrained from
doing so by Asha Devi and Mithilesh Devi and was also threatened with
dire consequences if she tried to enter the room. A heated argument
ensued between the parties
and the resultant noise attracted some residents of the village. Meena
Devi however managed to enter the room and having done so found the
dead body of Sudhia Devi lying in the courtyard. Meena Devi then rushed to the police station and lodged the FIR. On the completion of the
investigation the accused Hare Ra m Jha, Sudhia Devi's husband, Durga
Nand and Meena Devi, his parents & Asha Devi & Mithilesh Devi, his
sisters were charged for offences punishable under Sec.304-B and 498A of
the Indian Penal Code and brought to trial.
The prosecution in support of its case relied upon the evidence
of P W.5- Meena Devi and several other persons who had acco mpanied her
to the house of the deceased on the crucial day and also on the evidence
of Ra m Saran Mishra-P W.11 the father of the deceased, P W.13-Jeevo Devi-
her mother, and P W.15-Phoolo Devi, her Mousi. The prosecution also
produced in evidence P W.16 Dr. Dhrub Ku mar Dheeraj who had conducted
post-mortem on the dead body of the deceased and P W.17-B.P.Singh, the
Investigation Officer. In the course of the trialP W.1-10 i.e.Meena Devi and
all the others who had rushed to the rescue of Sudhia Devi on the crucial
day were declared hostile. A letter Ext. P.2 written by the deceased to her
mother on 25/6/1995, alleging maltreatment was also produced in evidence by the
prosecution. The trial court relying upon the evidence of P W.11, P W.13
anmd P W.15 and the docu ments which had been produced on record,
convicted the accused under Sec.304-B and Sec.498-A of the IPC and
sentenced Asha Devi, Mithilesh Devi and Meera Devi to seven years R.I.
under Sec.304-B and Durga Nand Jha and Hare Ra m Jha – the father-in-
law and the husband of the deceased respectively, to undergo
imprisonment for life.
The accused thereupon filed an appeal in the High Court which
has been dismissed by the impugned judgment dated 23/4/2004.
Three appeals have been filed in this Court: Criminal Appeal No.296/2005 by Asha Devi and Mithilesh Devi, Criminal Appeal No.297/2005
by Meera Devi and 1256/2007 by Durga Nand Jha - father-in-law of the
deceased, whereas Hare Ra m Jha has filed no appeal. All these matters
are being disposed of by this judgment.
The learned counsel for the appellants has, at the very outset,
argued that as per the facts on record, a case under Sec.304-B of the IPC
was not spelt out as there was no demand for dowry soon before the death
which was a sine qua non for the applicabilityof that Section. On facts,
the learned counsel has brought to our notice that the marriage had taken
place in the year 1993 and the death had occurred on 22/9/1997 and even if
Ext. P.2 which was the primary piece of evidence on record, was taken into
consideration, this too had been written on 25/6/1995 which was
about two years and three months before the death and such as this could
not form basis of the conviction. He has also sub mitted that in any case there was no evidence to connect the accused, more particularly Asha
Devi, Mithilesh Devi and Meera Devi, with the incident and that in any case
the sentence awarded to Durga Nand Jha was excessive as it was the
settled position that in a case of conviction under Sec.304 seven years R.I.
was the normal rule with a higher sentence being awarded in exceptinal
cases. For the last sub mission reliance has been placed upon the
judgment He m Chand vs. State of Haryana in 1994 (6) SCC 727
The learned counsel for the State has, however, pointed out that
a clear finding of fact had been recorded by the two courts below on an
appreciation of the evidence and the fact that the deceased had met an
unnatural death and had been tortured prior to the strangulation indicated
that all the accused had been involved in the incident. She has brought to
our notice the evidence of the Doctor - P W.16 who deposed of epidermal
burn injuries 4” x 3” x 3 x 2” on the upper part of the abdo men and
contusions on the chest wall in an area of 7” x 3” and observed that
ultimate cause of death was traumatic asphyxia and strangulation and that the mark of hanging was post mortem in nature. On internal examination
it was found that upper lobes of both lungs were bruised and other
internal organs were congested. It
is also clear from the post-mortem report that a female foetus of about 36
weeks was also found in the dead body. She has accordingly urged that
instead of presenting a case of murder, the accused have already been
dealt with in a very light manner. She has also emphasized that the words
`soon before the death' occurring under Sec.304-B could not be
mechanically applied and the chain of circumstances and the conduct of
the accused were extremely relevant factors in evaluating the evidence in
a case under Sec.304-B, more particularly, on account of the presumption
laid against the accused by virtue of Sec.113-B of the Evidence Act.
We have heard learned counsel for the parties and have perused
the record. At the very outset we must observe that a perusal of the
statements of P Ws.11 and 15 who are father and mother of the deceased
respectively, do not show any involvement of Asha Devi and Mithilesh Devi
– two of the sisters-in-law. Even a perusal of the letter – Annexure P.2
does not indicate any cruelty on their part. As a matter of fact, ithas been
brought to our notice by the learned counsel for the appellants that
Mithilesh Devi had been married in the year 1976 and Asha Devi in 1979
and they were living in their matrimonial ho mes at some distance from the
village in which the incident happened.
We, therefore, find that there is absolutely nothing to connect these two
accused with the incident. Criminal Appeal No. 296/2005 must, therefore,
to our mind be allowed. Asha and Mithilesh are ordered to be acquitted.
The evidence against the other accused however is un-
exceptional. Meera Devi is the mother-in-law and Durga Nand Jha is the
father-in-law and Hare Ra m Jha-the husband. It has come in the evidence
that the deceased was being harassed by these three persons for having
brought inadequate dowry and repeated demands were made for a T.V. set
etc. and further that a sum of Rs.51,000/- had been given after the marriage
pursuant to a demand. The learned counsel for the appellants has,
however, sub mitted that as a Panchayat had been organized to sort out the
dispute, the best evidence in this case would have been the appearance of
some me m b ers of the Panchayat to show that such a problem had arisen.
Itis true that ifa statement from a Panchayat me m ber had come on record,
the case of the prosecution would be strengthened but this omission
would not mean that the evidence available was insufficient to record a conviction, more particularly, in the back drop of Sec.113-B of the
Evidence Act.
We also find from Ext. P.2 referred to above that the primary
villain was the mother in law Meera Devi and that Her husband and son
were in fact acting as tools at her behest.
Moreover, from a reading of Ext. P.2 with the statements of ocular
evidence it appears that the demands had been made over for a period of
time. The presence of burn marks on the abdo men of the deceased
indicate torture and cruelty meted out to the deceased even on day when
she met her death. Moreover, as already observed above, from the
doctor's evidence it transpires that the deceased was first strangulated, and, thereafter (to camouflage the cause of death) she had been hanged in
the bedroo m to make it look as a case of suicide. It has come in the
evidence of P W.17, the I.O. B.P.Singh, that he had entered the room to find
the dead body hanging from the roof. In this view of the matter and
keeping in mind the presumption under Sec.113-B of the Evidence Act, we
find absolutely no merit in the other two appeals.
The appeals of Meera Devi and Durga Nand Jha (Crl.A.Nos.
297/2005 and 1256/2007 respectively),are accordingly, dismissed. We are
told that Meera Devi is on bail. She shall be taken into custody forthwith to
serve out the remaining period of sentence.
(J.M. PAN C H A L) New Delhi, July 22, 2009.