BASISTH NARAYAN YADAVversusKAILASH RAI AND ORS.

                   [2015) 6 S.C.R. 949


              BASISTH NARAYAN YADAV                        A
                           v.
                KAILASH RAI AND ORS.
          (Criminal Appeal Nos. 67-70 of 2009)
                                                           B
                     JULY 03, 2015
            [PINAKI CHANDRA GHOSE AND
                UDAY UMESH LALIT, JJ.]

      Penal code, 1860- s. 3048 - Death of married woman c
- In her matrimonial house - Within 7 years of marriage -
Prosecution of 10 accused - Case of one accused abated
due to her death during trial - Conviction of the 9 accused
by trial court - Acquittal of all the accused by High Court -
On appeal, held: Though the prosecution case suffers from D
many infirmities, yet incriminating circumstances of the case
indicate that the deceased was physically assaulted soon
before her death - Demand of dowry and harassment on its
account was also sufficiently proved- Thus main ingredients
of s. 3048 have been proved to trigger the presumption u/s. E
 1138 of Evidence Act- The burden of proof shifts on the
accused, which they failed to discharge - However, it has
not been conclusively proved that all the accused were
present in the house at the time of incident- Therefore, 7 of
the accused who are not the residents of the house are F
acquitted - The 2 accused i.e. the husband and father-in-
/aw of the deceased are convicted - Evidence Act, 1872 -
s. 1138 - Dowry death.

     Partly allowing the appeals, the Court                G

     HELD: 1.1 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,   H
                          949
950      SUPREME COURT REPORTS               [2015) 6 S.C.R.


A the doctor and the Investigating Officer. Even 'T' (witness
  to the incident) and the Chowkidar who saw the accused
  persons disposing of the body of the deceased, have
  also not been examined. Yet the fact that this is the
  case of dowry death, cannot be lost sight of. Even with
B 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. When PW-5
  informant arrived at the house on the day of the incident,
C 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
0
  which shows physical assault. Her knees were tied with
  an iron wire even after death. This indicates that the
  deceased was not only physically assaulted which
  caused her three ribs to fracture, but she was also tied
E up with iron wire so as to make her immobile and
  thereafter she was set on fire. [Para 9] [957-C-H]

       1.2 The demands of dowry are proved sufficiently
  by PW-5, and the letter that the deceased had written to
F 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
  complaintto the Chief Judicial Magistrate under Sections
G 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.
  [Para 9] [957-H; 958-A-C]

        1.3 The death of the deceased occurred within a
H
 BASISTH NARAYAN YADAV v. KAI LASH RAI AND ORS. 951


little over 2 years of the marriage. The three main         A
ingredients of Section 3048 of IPC have been proved to
trigger the presumption under Section 1138 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          B
mental cruelty against the deceased, prior to her death.
The post-mortem report revealed the physical assault
on her, just before her death. Therefore, the burden of
proof must shift on the accused persons to explain the
death of the deceased. The defence has made a cursory       C
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
                                                            0
conduct of the accused persons is very suspicious and
non-explanation of the same means that they have not
discharged their burden of proof. [Para 9] [958-C-F]

       2. There are ten accused persons in this case (one
of them i.e. mother-in-law died during the pendency of E
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. Three accused who are
not the members of this family and they had no reason F
to be present at the house of husband-accused, when
the deceased died due to burn injuries. Similarly the two
sisters of husband-accused and th.eir husbands did not
use to live in that house and they used to stay in a
different village. There is no evidence to the effect that . G
these accused persons were in that house when the
incident occurred. Therefore, it is not prudent to attach
guilt to them in absence of any such evidence. [Para 1O]
958-G; 959-A-C]
                                                             H
952        SUPREME COURT REPORTS                [2015] 6 S.C.R.


A       3. However the husband-accused and his father
   who were ordinarily residents in the house where the
   deceased died of burn injuries, have no.t offered any
   reasonable explanation as to how did the deceased
   suffer the ante-mortem injuries and died due to burn
 B injuries. In these circumstances, they are guilty fi;>r
   commission of crime. [Para 11] [959-D-E]

          CRIMINAL APPELLATE JURISDICTION: Criminial
      Appeal Nos. 67-70 of 2009.
c
           From the Judgment and Order dated 07.02.2007 in Crl.
      Appeal Nos. 396, 405, 407 and 421 of 2003 of the High
      Court of Judicature of Patna at Patn::i. Ri~3r.

           S. K. Mohanty, Awanish Sinha for the Appellant.
D
           Nagendra Rai, Aakash Kumar, Shashank Saurav (T.
      Mahipal), Gopal Singh, Shubhra Rai, Rashmi Srivastava for
      the Respondents.

E          The Judgment of the Court was delivered by

        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 Gou rt of Judicature of Patna in Criminal
F 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
G persons for the offence under Section 304-B of the Indian
  Penal Code, 1860, and sentenced them to rigorous
  imprisonment for ten years.

       2. Before venturing into the facts of the case it would
H be expedient to mention the names of the persons involved
 BASISTH NARAYAN YADAV v. KAI LASH RAI AND ORS. 953
          [PINAKI CHANDRA, GHOSE, J.]

in this case which are as follows:                           A

  Deceased: Raj Banshi Devi
  Accused persons:
  (i) Ranjeet Rai @ Ranjeet Kumar Rai (husband of the
                                                             B
  deceased)
  (ii)Janaki Devi (mother-in-law of the deceased - died
  dut'ing the trial of the case)
  (iii) Dholan Devi (sister-in-law of the deceased)
                                                             c
  (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)           D.
  (viii)Sarita Kumari (alleged second wife of Ranjeet Rai)
  (ix) Bishnudeo Rai (father of Sarita Kumari)
  (x) Binda Rai (close relation of Bishnudeo Rai)
                                                             E
  Prosecution witnesses:
  (i) Mishri Lal
  (ii) Awadhesh Kumar
  (iii) Munsi Lal                                            F
  (iv) Mahendra Rai
  (v) Basisth Narayan Yadav (brother of the deceased)

     3. The facts as per the prosecution story are that Raj G
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 H
954         SUPREME COURT REPORTS                  [2015) 6 S.C.R:


A     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
B     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
C     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
D     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
E     made explicit demands of a Rajdoot Motorcycle and a
      Television and threatened him effacing 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
F     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
G 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
H conducting the prosecution, there is another strikingly
  BASISTH NARAYAN YADAV v. KAI LASH RAI AND ORS. 955
           [PINAKI CHANDRA, GHOSE, J.]

 disturbing fact that neither the doctor who conducted post- A
 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 B
 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 C
 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-    D
   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      E
  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           F
  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       G
  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.        H
956      SUPREME COURT REPORTS                 [2015) 6 S.C.R.


A 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
B 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
C 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 Ranjeet Rai did
  marry Sarita Kumari, however, no conclusive proof is brought
  fore to prove this fact.
0
        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
E 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
F 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
G 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.

        8. The defence has not come up with a substantial case
H of its own except claiming that the deceased was not
 BASISTH NARAYAN YADAV v. KAI LASH RAI AND ORS. 957
          [PINAKI CHANDRA, GHOSE, J.]

murdered but she caught fire from a stove while cooking A
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 B
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     C
 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 !"!Ot          D
 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   E
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         F
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        G
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           H
958       SUPREME COURT REPORTS                [2015] 6 S.C.R.


A 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
8 494, 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 Ranjeet Rai on 26.06.1987 which means
  the death of the deceased occurred within a little over 2
C years of the marriage. We find that the three main ingredients
  of Section 3048 of IPC have been proved to trigger the
  presumption under Section 1138 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
0
  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
E 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
F 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
G 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
H attaching the guilt to the accused persons whose presence
 BASISTH NARAYAN YADAV v. KAI LASH RAI AND ORS. 959
          [PINAKI CHANDRA, GHOSE, J.]

itself can be doubted at the place of incident. In the present A
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. Si~ilar is the case of Dholan Devi
and Deobanti Devi (sisters of Ranjeet Rai) and their B
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 C
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 D
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 E
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 F
this extent. Ranjeet Rai and Yogendra Rai shall be taken
into custody forthwith to serve out the sentence.

Kalpana K. Tripathy                      Appeals partly allowed.

                                                                   G