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. 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. 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 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.

                                                                  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:
Ranjeet Rai @ Ranjeet 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 Ranjeet Rai)
Ram Shresth Rai (husband of Deobanti Devi)
Sarita Kumari (alleged second wife of Ranjeet Rai)
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 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
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  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  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.

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  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.

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 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.

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 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.
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)