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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.

1. 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.

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2. 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:

(i) Ranjeet  Rai  @  Ranjeet  Kumar  Rai  (husband  of  the

deceased)

(ii) Janaki Devi (mother-in-law of the deceased - died during

the trial of the case)

(iii) Dholan Devi (sister-in-law of the deceased)

(iv) Yogendra Rai (father-in-law of the deceased)

(v) Kailash Rai (husband of Dholan Devi)

(vi) Deobanti Devi (sister of Ranjeet Rai)

(vii) Ram Shresth Rai (husband of Deobanti Devi)

(viii) Sarita Kumari (alleged second wife of Ranjeet Rai)

(ix) Bishnudeo Rai (father of Sarita Kumari)

(x) Binda Rai (close relation of Bishnudeo Rai)

Prosecution witnesses:

Mishri Lal

Awadhesh Kumar

Munsi Lal

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Mahendra Rai

Basisth Narayan Yadav (brother of the deceased)

3. The facts as per the prosecution story are that Raj Banshi

Devi (now deceased) was married to Ranjeet Rai  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

Ranjeet Rai 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 Ranjeet Rai 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

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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.

4. 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

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who conducted  post-mortem nor  the  investigating  officer  was

brought on record as witness.

5. 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.

6. 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

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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

Ranjeet  Rai   was  rumored  to  marry  soon.  He  had  requested

Bishnudeo Rai not to let his daughter marry Ranjeet Rai  as it

would  ruin  the  life  of  his  sister  (now  deceased)  but  it  was

dismissed by Bishnudeo Rai.  Later he learnt that Ranjeet Rai

was marrying Sarita Kumari and so he had taken his sister (now

deceased) to her matrimonial house and due to this reason the

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marriage  was  postponed  from  24.06.1988  to  27.06.1988.

Thereafter,  it  is  alleged  that  Ranjeet  Rai  did  marry  Sarita

Kumari, however, no conclusive proof is brought fore to prove

this fact.  

7. 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.

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8. 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.

9. 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

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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

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Ranjeet   Rai  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.

10. However, we must focus our attention to the fact that there

are ten accused persons in this case (one of them died during

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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 Ranjeet Rai

when the deceased died due to burn injuries. Similar is the case

of Dholan Devi and Deobanti Devi  (sisters of Ranjeet Rai)  and

their   husbands  Kailash  Rai  and  Ram  Shrestha  Rai.  Those

persons did not use to live in the house of Ranjeet Rai  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.  

11. With respect to the other accused persons i.e. Ranjeet Rai

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

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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 Ranjeet Rai and Yogendra Rai, as

guilty for commission of crime. Accordingly, the judgment and

order of  the Trial  Court,  so far as it  convicted and sentenced

Ranjeet Rai and Yogendra Rai, is restored and the appeals are

allowed to this extent. Ranjeet Rai and Yogendra 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.

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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)