It is settled law that incriminating circumstances appearing against the accused in prosecution evidence must be put to the accused at the time of statement under Section 313 Cr.P.C. Unless such statements are put to the accused to give opportunity to meet the same with explanation, such incriminating circumstances cannot be used against the accused. This was said in the case of Shivjee Sah And Anr vs The State Of Bihar [CRIMINAL APPEAL (SJ) No.4273 of 2018] by Mr. Justice Birendra Kumar in the High Court of Bihar.
The facts of the case are that the appellants were found guilty for offence under Section 304-B of the Indian Penal Code by judgment dated 25.09.2018. Appellant was sentenced to undergo rigorous imprisonment for 10 years and other appellants were sentenced to undergo rigorous imprisonment for 7 years. The judgment of conviction and order of sentence are challenged in these appeals.
The appellant contended that there is no acceptable evidence of demand of dowry and torture for the same after fulfillment of the demand of a gold chain as alleged by the prosecution. The prosecution case suffers from non-corroboration of claim of the prosecution that the victim was throttled to death by the medical evidence. Further, the specific question on incriminating material as to nature of dowry demand and nature of torture is missing in the statement of accused under Section 313 Cr.P.C. Hence prosecution evidence, if any, cannot be relied upon.
The State contended that plurality of the witness on any specific point is not the requirement of law. Prosecution witness 4 and 5 have specifically deposed that even after fulfillment of earlier demand of gold chain, further demand of motorcycle continued. The victim died within a year of her marriage in unnatural circumstances in the matrimonial house. Hence, the burden was on the appellants to dispel the presumption that this was not a case of dowry death.
The Court referring to the case of Sunil Bajaj Vs. State of Madhya Pradesh [2001 CRI. L. J], said that “In the case on hand, there is no independent corroboration, of any torture to the deceased, by any neighbor who had occasion to watch the relationship of the deceased with her in-laws nor there is any evidence that the deceased while she was in her parents house from 20.09.2013 to 23.09.2013, made any complaint of demand and torture nor the doctor found any external injury on the person of the deceased to corroborate the claim of the prosecution witnesses that the deceased telephonically informed that she was bitterly assaulted by the in- laws and after few hours report of her death was received. Thus, the prosecution evidence is very shaky and clumsy to prove the ingredient of demand of dowry and torture for the same and on such evidence conviction would not be safe”.
Furthermore, the Court said that “The learned trial Judge has not considered correctly that the prosecution has failed to prove a case of demand of dowry and torture for non-fulfillment of the same. As such the prosecution failed to establish the charge under Section 304-BIPC beyond reasonable doubt”. Hence, the judgment of the Trial Court is set aside.
