caselaws
Supreme Court of India
Basisth Naryan Yadav vs Kailash Rai And Ors on 3 July, 2015Author: P C Ghose
Bench: Pinaki Chandra Ghose, Uday Umesh Lalit
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 67-70 OF 2009
BASISTH NARAYAN YADAV …APPELLANT
:versus:
KAILASH RAI AND ORS. …RESPONDENTS
J U D G M E N T
Pinaki Chandra Ghose, J.
The present set of appeals arise out of the common judgment and order dated
7.02.2007 of the High Court of Judicature of Patna in Criminal Appeal
Nos.396, 405, 407 and 421 of 2003, whereby the High Court reversed the
Trial Courts judgments and acquitted all the nine accused persons in this
case. Earlier the 5th Additional Sessions Judge, Vaishali at Hajipur, being
the Trial Court in the present matter, had convicted nine accused persons
for the offence under Section 304-B of the Indian Penal Code, 1860, and
sentenced them to rigorous imprisonment for ten years.
Before venturing into the facts of the case it would be expedient to
mention the names of the persons involved in this case which are as
follows:
Deceased: Raj Banshi Devi
Accused persons:
Ranjit Kumar Rai (husband of the deceased)
Janaki Devi (mother-in-law of the deceased – died during the trial of the
case)
Dholan Devi (sister-in-law of the deceased)
Yogendra Rai (father-in-law of the deceased)
Kailash Rai (husband of Dholan Devi)
Deobanti Devi (sister of Ranjit Kumar)
Ram Shresth Rai (husband of Deobanti Devi)
Sarita Kumari (alleged second wife of Ranjit Kumar)
Bishnudeo Rai (father of Sarita Kumari)
Binda Rai (close relation of Bishnudeo Rai)
Prosecution witnesses:
Mishri Lal
Awadhesh Kumar
Munsi Lal
Mahendra Rai
Basisth Narayan Yadav (brother of the deceased)
The facts as per the prosecution story are that Raj Banshi Devi (now
deceased) was married to Ranjit Kumar on 28.06.1987. Within 5 months of
marriage, the in-laws of the deceased started torturing her and making
dowry demands of a Rajdoot Motorcycle and a Television. Allegedly, the
deceased was also threatened to be assaulted and killed and she was told
that Ranjit Kumar would marry somebody else. The informant Basisth Narayan
has stated that whenever he visited the deceased she informed him of the
harassment that she suffered at the hands of her in-laws. He took her
sister back to her parental home in December 1987 on her insistence since
she feared of being killed. Later on, learning that Ranjit Kumar was going
to marry one Sarita Kumari daughter of Bishnudeo Rai, Basisth Narayan took
his sister, now deceased, to her matrimonial home on 24-06-1988. The
deceased was allegedly beaten up and turned out of home by her in-laws. She
again went to her matrimonial home on 01-07-1988. However, she was again
badly assaulted and beaten up for not fulfilling the dowry demands on
17.07.1988. After this incident the deceased had filed a complaint before
the Chief judicial Magistrate, Vaishali, against the accused persons under
Sections 498A, 494 of IPC and Sections 3 and 4 of Dowry Prohibition Act. It
is the further case of the prosecution that in October, 1988, the accused
persons called Basisth Narayan to their house and made explicit demands of
a Rajdoot Motorcycle and a Television and threatened him of facing the
death of his sister. On 30.07.1989 in the morning, Basisth Narayan (the
informant) received the news of his sister’s death and he went to her
matrimonial house where he found her sister died of burn injuries. He filed
an FIR and the police conducted investigation thereupon.
During the trial, the prosecution produced 5 witnesses out of 11 persons
named in the charge-sheet. It appears that prosecution missed out to
examine either parents of the deceased and curiously, two persons being Bir
Bahadur Rai and Chandeshwar Rai, who were cited as prosecution witnesses in
the charge-sheet, were produced as Defence Witnesses. If this was not
enough to show poor way of conducting the prosecution, there is another
strikingly disturbing fact that neither the doctor who conducted post-
mortem nor the investigating officer was brought on record as witness.
PW-1 Mishri Lal appears to be a hearsay witness as he says that he was told
by one Triloki Sharma that the ten accused persons had beaten up the
deceased and set her on fire. Even PW2 Awadhesh Rai says that he had gone
to Triloki Sharma’s house on the date of incident i.e. 30.07.1989 when
Triloki Sharma told him that the accused persons had beaten up the deceased
and that she was killed. He further states that he had seen the dead body
of the deceased and it had scars all over the body and both the knees were
tied up with iron wire.
The testimony of the informant Basisth Narayan (PW-5) is vital one as he is
the brother of the deceased. He has stated that the incident occurred on
the night intervening 29.07.1989 and 30.07.1989. He received the
information of death of his sister in the morning of 30.07.1989 and went to
her place. He found large assemblage of people outside the house. On going
inside the house he found the dead body of his sister which was covered
with pink colour terrycot saree. On removing the saree he found both her
hands were tied with iron wire and flesh of both the hands was reddish
while neck also appeared to be tied with something. On enquiring from the
crowd assembled outside the house he learnt that the previous night at
around 9 PM, all the ten accused persons were making conversations inside
the house and even sound of crying was heard. People also told him that in
the morning when the accused persons were trying to dispose of the dead
body, the village chowkidar had seen them, so they all fled away. He has
further testified to the harassment met out with the deceased after her
marriage at the hands of the accused persons. He deposed with respect to
the dowry demands which we have already recorded in the alleged facts from
the side of prosecution and, for the sake of brevity, we are not repeating
them. He has further deposed that 21.06.1988 he had gone to Bishnudeo Rai
who is the father of Sarita Kumari to whom Ranjit Kumar was rumored to
marry soon. He had requested Bishnudeo Rai not to let his daughter marry
Ranjit Kumar as it would ruin the life of his sister (now deceased) but it
was dismissed by Bishnudeo Rai. Later he learnt that Ranjit Kumar was
marrying Sarita Kumari and so he had taken his sister (now deceased) to her
matrimonial house and due to this reason the marriage was postponed from
24.06.1988 to 27.06.1988. Thereafter, it is alleged that Ranjit Kumar did
marry Sarita Kumari, however, no conclusive proof is brought fore to prove
this fact.
Apart from oral testimony, we find that there is a letter dated 09.08.1988
written in handwriting of the deceased and signature of the deceased, to
her brother Basisth Narayan wherein she has expressed her fears of being
killed by her in-laws if the demands of dowry were not met. She mentions in
that letter about a past incident when she was given poison in her food but
she threw away the food. This letter was proved by PW-5 as the one that he
received from his sister. The medical evidence in this case is the post-
mortem report. The post-mortem report reveals that there are numerous ante
mortem injuries. Three ribs in chest are found fractured by some hard and
blunt object and that there are superficial burn injuries all over the body
deep at only a small portion of front neck. The cause of death as per the
post-mortem report appears to be shock due to burn injuries.
The defence has not come up with a substantial case of its own except
claiming that the deceased was not murdered but she caught fire from a
stove while cooking food. The defence has contended various lacunae in the
case of the prosecution. They have relied heavily on the non-examination of
important witnesses in this case. But besides this, the defence has failed
to explain any other circumstance surrounding the death of the deceased or
the circumstances after her death.
We have analysed the evidence produced in this case. We find that although
the case of the prosecution suffers from many infirmities and there has
been unexplained reluctance in bringing the relevant witnesses on record,
apart from parents of the deceased, the doctor and the Investigating
Officer, even Triloki Sharma and the Chowkidar who saw the accused persons
disposing of the body of the deceased, have also not been examined. Yet we
may not lose sight of the fact that this is the case of dowry death. Even
with the limited evidence brought on record certain things have been
established. It is undisputed that the deceased had died during the night
of 30.07.1989 due to burn injuries inside her matrimonial house. It further
appears that when PW-5 informant arrived at the house on the day of the
incident, the house was deserted except that her sister’s dead body was
lying. These two are extremely incriminating circumstances; as in normal
course the dead body would not have been abandoned like this. Further,
there are ante mortem injuries found on the body of the deceased which
shows that there was some physical assault on her before she died. This is
further established by the fact that her knees were tied with an iron wire
even after death. We find this indicates that the deceased was not only
physically assaulted which caused her three ribs to fracture but she was
also tied up with iron wire so as to make her immobile and thereafter she
was set on fire. The demands of dowry are proved sufficiently by PW-5 and
the letter that the deceased had written to PW-5, clearly shows that the
demands of dowry were not only made but even cruelty in relation to those
demands was committed. The deceased had expressed in the letter her
apprehension of being killed. The complaint to the Chief Judicial
Magistrate under Sections 494, 498A of IPC and Sections 3 and 4 of Dowry
Prohibition Act, goes on to further indicate that dowry related cruelty was
committed against the deceased. The deceased was married to accused Ranjit
Kumar on 26.06.1987 which means the death of the deceased occurred within a
little over 2 years of the marriage. We find that the three main
ingredients of Section 304B of IPC have been proved to trigger the
presumption under Section 113B of the Evidence Act, 1872. The death has
occurred within 7 years of the marriage due to burn injuries and there were
demands of dowry accompanied with the physical and mental cruelty against
the deceased prior to her death. The post-mortem report has revealed the
physical assault on her just before her death. Therefore, we find that the
burden of proof must shift on the accused persons to explain the death of
the deceased. The defence has made a cursory statement that the deceased
caught fire from stove while cooking food. There is no explanation as to
why the deceased was not taken to hospital or why was the dead body left
unattended to in the morning. The entire conduct of the accused persons is
very suspicious and non-explanation of same means they have not discharged
their burden of proof.
However, we must focus our attention to the fact that there are ten accused
persons in this case (one of them died during the pendency of trial) and it
has not been proved conclusively or even sufficiently that all of the
accused were present in the house when the deceased died. Since we are
proceeding on a presumption we must be cautious in attaching the guilt to
the accused persons whose presence itself can be doubted at the place of
incident. In the present case, Sarita Kumari, her father Bishnudeo Rai and
Binda Rai are not members of this family and they had no reason to be
present at the house of Ranjit Kumar when the deceased died due to burn
injuries. Similar is the case of Dholan Devi and Deobanti Devi (sisters of
Ranjit Kumar) and their husbands Kailash Rai and Ram Shrestha Rai. Those
persons did not use to live in the house of Ranjit Kumar and they used to
stay in a different village. There is no evidence to the effect that these
accused persons were in that house when the incident occurred. Therefore,
we do not find it prudent to attach guilt to them in absence of any such
evidence.
With respect to the other accused persons i.e. Ranjit Kumar and his father
Yogendra Rai, who were ordinarily residents in the house where the deceased
died of burn injuries, neither of the two accused persons has offered any
reasonable explanation as to how did the deceased suffer the ante mortem
injuries and died due to burn injuries. In these circumstances, we find the
two accused persons, being Ranjit Kumar and Yogndra Rai, as guilty for
commission of crime. Accordingly, the judgment and order of the Trial
Court, so far as it convicted and sentenced Ranjit Kumar and Yogndra Rai,
is restored and the appeals are allowed to this extent. Ranjit Kumar and
Yogndra Rai shall be taken into custody forthwith to serve out the
sentence.
……………………………..J
(Pinaki Chandra Ghose)
……………………………..J
(Uday Umesh Lalit)
New Delhi;
July 03, 2015.
ITEM NO.1A COURT NO.11 SECTION IIA
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 67-70/2009
BASISTH NARYAN YADAV Appellant(s)
VERSUS
KAILASH RAI AND ORS Respondent(s)
Date : 03/07/2015 These appeals were called on for pronouncement
of judgment today.
For Appellant(s) Ms. Naina Sharma, Adv.
Mr. Awanish Sinha, AOR
For Respondent(s) Mr. Gopal Singh, AOR
Mr. T. Mahipal, AOR
Hon’ble Mr. Justice Pinaki Chandra Ghose pronounced the reportable
judgment of the Bench comprising His Lordship and Hon’ble Mr. Justice Uday
Umesh Lalit.
The appeals are allowed in terms of the signed reportable judgment as
follows:
“Accordingly, the judgment and order of the Trial Court, so far as
it convicted and sentenced Ranjit Kumar and Yogndra Rai, is restored
and the appeals are allowed to this extent. Ranjit Kumar and Yogndra Rai
shall be taken into custody forthwith to serve out the sentence.”
(R.NATARAJAN) (SNEH LATA SHARMA)
Court Master Court Master
(Signed reportable judgment is placed on the file)
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