Parvati Devi vs The State Of Bihar Now State Of Jharkhand

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

JUDGMENT

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

Devi, appellant in Criminal Appeal No. 574/2012 Date: 2021.12.17 16:18:35 IST Reason: (hereinafter

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referred to as A-3) are aggrieved by the common judgment

dated 1st May, 2007 passed by the High Court of Jharkhand

upholding the judgment of conviction dated 20 th September,

1999 under Sections 304B and 201 read with Section 34 IPC

passed by the 5th 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

8th 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.

3. Five days after the FIR was lodged by PW-3 on 13 th 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 consistent evidence

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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

Haryana1 , 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

1 (2011) 11 SCC 359

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should make life of the deceased miserable which may force her to commit suicide.”

16. In Maya Devi and Anr. vs. State of Haryana2, 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.”

2 (2015) 17 SCC 405

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[Also refer to G.V. Siddaramesh v. State of Karnataka3 and Ashok Kumar vs. State of Haryana4]

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 3 (2010) 3 SCC 152 4 (2010) 12 SCC 350

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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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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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