Asha Devi & Anr vs State Of Bihar

IN TH E S U P R E M E C O U R T O F INDIA C RI MIN A L AP P E L L A T E JU RIS DICTIO N

C RI MIN A L AP P E A L N O. 296 O F 2005

AS H A D E VI & A N R. .. AP P E L L A N T(S)

vs.

ST A T E O F BIHA R .. R E S P O N D E N T( S)

WIT H

C RI MIN A L AP P E A L N O S. 297 O F 2005 A N D 1256 O F 2007

O R D E R

These appeals arise from the following facts:

Sudhia Devi deceased was m arried with Hare Ra m Jha about 3-4

years before the incident happened and was pregnant at the time of the

occurrence. O n 22 nd Septe m b er, 1997. P W.5 - M eena Devi, Sudhia Devi's

aunt, received information that Sudhia Devi was being beaten by her

husband and his parents and sisters. M eena Devi along with her relatives

rushed to Sudhia Devi's ho m e and was told by her m other-in-law M eera Devi and her daughters Asha Devi and Mithilesh Devi that she was in the

process of delivering a child. M ee na Devi, ho w ever, insisted that she

should be allowed to see Sudhia Devi on w hich 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 roo m. A heated argu m e nt

ensued between the parties

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and the resultant noise attracted so m e residents of the village. M eena

Devi ho w ever m a n a ge d to enter the roo m and having done so found the

dead body of Sudhia Devi lying in the courtyard. M eena Devi then rushed to the police station and lodged the FIR. On the co m pletion of the

investigation the accused Hare Ra m Jha, Sudhia Devi's husband, Durga

Nand and M eena 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- M eena Devi and several other persons w h o had acco m p a nied 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 m other, and P W.15-Phoolo Devi, her M o u si. The prosecution also

produced in evidence P W.16 Dr. Dhrub Ku m ar Dheeraj w h o had conducted

post-m orte m 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.M eena Devi and

all the others w h o 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

m other on 25/6/1995, alleging m altreatment was also produced in evidence by the

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prosecution. The trial court relying upon the evidence of P W.11, P W.13

an m d P W.15 and the docu m e nts w hich 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 M eera 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

imprison m e nt for life.

The accused thereupon filed an appeal in the High Court w hich

has been dismissed by the impugned judg m e nt 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 M eera Devi and 1256/2007 by Durga Nand Jha - father- law of the in-

deceased, w hereas Hare Ra m Jha has filed no appeal. All these m atters

are being disposed of by this judg m e nt.

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 de m a n d for do wry soon before the death

w hich was a sine qua non for the applicabilityof that Section. On facts,

the learned counsel has brought to our notice that the m arriage had taken

place in the year 1993 and the death had occurred on 22/9/1997 and even if

Ext. P.2 w hich was the primary piece of evidence on record, was taken into

consideration, this too had been written on 25/6/1995 w hich was

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about two years and three m o nths 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, m ore particularly Asha

Devi, Mithilesh Devi and M eera 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 nor m al rule with a higher sentence being awarded in exceptinal

cases. For the last sub mission reliance has been placed upon the

judg m e nt He m Chand vs. State of Haryana in 1994 (6) S C C 727

The learned counsel for the State has, ho w ever, 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 m et 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 w h o deposed of epidermal

burn injuries 4" x 3" x 3 x 2" on the upper part of the abdo m e n and

contusions on the chest wall in an area of 7" x 3" and observed that

ultimate cause of death was trau matic asphyxia and strangulation and that the m ark of hanging was post m orte m in nature. O n internal exa mination

it was found that upper lobes of both lungs were bruised and other

internal organs were congested. It

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is also clear from the post-m orte m 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 m urder, the accused have already been

dealt with in a very light m a n n er. She has also e m p h asized that the w ords

`soon before the death' occurring under Sec.304-B could not be

m e c ha nically applied and the chain of circu mstances and the conduct of

the accused were extremely relevant factors in evaluating the evidence in

a case under Sec.304-B, m ore particularly,on account of the presu m ption

laid against the accused by virtue of Sec.113-B of the Evidence Act. W e have heard learned counsel for the parties and have perused

the record. At the very outset we m u st observe that a perusal of the

statements of P W s.11 and 15 w h o are father and m other of the deceased

respectively,do not sho w any involve me nt of Asha Devi and Mithilesh Devi

- two of the sisters- law. Even a perusal of the letter - Annexure P.2 in-

does not indicate any cruelty on their part.As a m atter of fact,ithas been

brought to our notice by the learned counsel for the appellants that

Mithilesh Devi had been m arried in the year 1976 and Asha Devi in 1979

and they were living in their m atrimonial ho m e s at so m e distance from the

village in w hich the incident happened.

-6- W e, therefore, find that there is absolutely nothing to connect these two

accused with the incident. Criminal Appeal No. 296/2005 m u st, therefore,

to our mind be allowed. Asha and Mithilesh are ordered to be acquitted.

The evidence against the other accused ho w ever is un-

exceptional. M eera Devi is the m other-in-law and Durga Nand Jha is the

father- law and Hare Ra m Jha-the husband. Ithas co m e in the evidence in-

that the deceased was being harassed by these three persons for having

brought inadequate do wry and repeated de m a n d s were m a d e for a T.V. set

etc. and further that a su m of Rs.51,000/- had been given after the m arriage

pursuant to a de m a n d. The learned counsel for the appellants has,

ho w ever, sub mitted that as a Panchayat had been organized to sort out the

dispute, the best evidence in this case w o uld have been the appearance of

so m e m e m b ers of the Panchayat to sho w that such a proble m had arisen.

Itis true that ifa statement from a Panchayat m e m b er had co m e on record,

the case of the prosecution w o uld be strengthened but this o mission

w o uld not m e a n that the evidence available was insufficient to record a conviction, m ore 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 m other in law M eera Devi and that Her husband and son

were in fact acting as tools at her behest.

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M oreover, from a reading of Ext. P.2 with the statements of ocular

evidence it appears that the de m a n d s had been m a d e over for a period of

time. The presence of burn m arks on the abdo m e n of the deceased

indicate torture and cruelty m eted out to the deceased even on day w he n

she m et her death. M oreover, as already observed above, from the

doctor's evidence it transpires that the deceased was first strangulated, and, thereafter (to ca m o uflage the cause of death) she had been hanged in

the bedroo m to m a ke it look as a case of suicide. It has co m e in the

evidence of P W.17, the I.O. B.P.Singh, that he had entered the roo m to find

the dead body hanging from the roof. In this view of the m atter and

keeping in mind the presu m ption under Sec.113-B of the Evidence Act, we

find absolutely no m erit in the other two appeals.

The appeals of M eera Devi and Durga Nand Jha (Crl.A.Nos.

297/2005 and 1256/2007 respectively),are accordingly, dismissed. W e are

told that M eera Devi is on bail. She shall be taken into custody forthwith to

serve out the remaining period of sentence.

.... . . . ..... . . . . . . .

. . . . . . . . . . . .J (HA RJIT SIN G H B E DI)

.... . . . . . . . . . . . . . .

. . . . . . . . . . . . . .J (J.M. PA N C H A L) Ne w Delhi, July 22, 2009.