The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No. 303 of 2004 ---- (Against the judgment of conviction dated 12.2.2004 and order of sentence dated 13.2.2004 passed by the learned Additional Sessions Judge (F.T.C. II), Giridih in Sessions Trial No. 123 of 1997.) --- 1. Phoolchand Mandal 2. Surendra Mandal @ Surendra Prasad Mandal 3. Yasoda Devi The State of Jharkhand -Versus- ....Appellants ....Respondents
Legal Reasoning
--- CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN --- For the Appellant : Mr. Sidhartha Roy, Advocate For the Respondent : Ms. Shweta Singh, A.P.P -- 11/14.07.2023 Heard learned counsel for the parties. 2. This appeal is directed against the judgment of conviction and order of sentence dated 12.2.2004 & 13.2.2004, respectively, passed by the learned Additional Sessions Judge (F.T.C. II), Giridih in Sessions Trial No. 123 of 1997; whereby the appellants were convicted for the offences punishable under Sections 306/34 of I.P.C and 498A/34 of I.P.C and sentenced to undergo R.I. for 7 years under Section 306/34 I.P.C and R.I. for 2 years under Section 498/34 of I.P.C and fine of Rs. 2000/- each and in default of payment of fine to undergo R.I for a further period of 6 months. 3. The prosecution case in brief is that the daughter of the informant Phulmati Devi was married with Ashok Mandal, but no issue was born to her. Her father-in-law, mother-in-law and husband used to demand money as dowry and the informant used to give sufficient amount of money as per his status. On 30.01.1996, his son-in-law had demanded Rs. 5000/- from son of informant Binod Prasad, which was refused by him and then Ashok Mandal had threatened him. Thereafter, on 2.9.1996 at 9 a.m., the informant received an information that his daughter had committed suicide and then he along with others reached at the place of occurrence and got an information that on the last night the accused persons had caused death of his daughter by throttling her in their house with common intention and they threw the dead body of his daughter for causing disappearance of the evidence against them. 4. Learned counsel for the appellants submits that due to non- examination of I.O, the appellants have been greatly prejudiced, inasmuch as, 2 P.W.1-Tulsi Mandal has categorically stated that Ashok Mandal (Husband) and the deceased used to stay in Chhotaki Saria, whereas Prakash and Phoolchand used to reside at Sopa, Tulsi Mandal and Yashoda Devi used to live in Railway quarter at Dhanbad and Surendra Mandal used to live at Tilaiya, which goes to show that the surviving appellants were not residing with the husband as Phoolchand Mandal and Surendra Mandal were brother- in-law of the deceased and Yasoda Devi was sister-in-law of the deceased. He further submits that though, father-in-law of the deceased was initially appellant in this case, who was also convicted, but during pendency of this appeal, he died. As such, his appeal stood dismissed as abated. He further submits that the doctor’s testimony has falsified the allegation of throttling as, in his cross-examination, he has stated that the injury of the deceased might have happened as a result of train accident. Even the other witnesses, who all were relatives of the informant did not support the case like P.Ws. 3, 4, and 6 and it is only P.Ws. 5 and 9, who have supported the case but even admitting their deposition as gospel truth; the allegations are against the husband, mother-in-law and father-in-law and in the instant appeal, the surviving appellants are brother-in-law and sister-in-law. As such, even admitting the demand of dowry the allegation is not proved as against the surviving appellants. Learned counsel has further relied upon the statement of P.Ws. 6 & 8 and submits that as per them the deceased died due to accident. Relying upon the aforesaid contention, he submits that the conviction under Section 498A and 306 IPC is not proved beyond reasonable doubts as no evidence has been brought on record as against these surviving appellants. 5. Learned A.P.P for the State has opposed the prayer of the appellants for acquittal and submits that the statement of P.W. 1 cannot be relied upon as he has been declared hostile. Even the doctor’s testimony in cross-examination cannot be relied upon as he has opined that the occurrence could have happened due to rail accident, but in his cross-examination, he has not disputed the allegation of assault. Thus, no interference is required. 6. Having heard learned counsel for the parties and after going through the L.C.R and the impugned judgment, it appears that during pendency of this appeal the original appellant no. 1- Tulsi Mandal died and this appeal stood dismissed vide order dated 02.11.2021. Now coming on to 3 the surviving appellants, it appears that appellant no. 1 and 2 are brothers-in- law of the deceased and last appellant-Yasoda Devi is sister-in-law. It further transpires from deposition of prosecution witnesses, it has not been proved that the surviving appellants were residing along with the deceased, inasmuch as, though P.W.-1 has been declared hostile, but he has given details with respect to place of residence of all the surviving appellants. At this stage, this court cannot ignore the testimony of doctor; who, in his cross-examination, has held that the injuries mentioned above may be caused as a result of rail accident, which clearly goes to show that the doctor was not confident as to whether the injuries mentioned were caused by heard, heavy and blunt object or by train accident. As such, the opinion of the Doctor cannot be taken as gospel truth so far as the conviction of the present appellants are concerned. It further transpires from deposition of P.Ws. 5 & 9 the main allegation of dowry and/or torture was against the father-in-law (now deceased), the mother-in-law (not appellant in this case) and husband (not appellant in this case). There is exaggeration by the prosecution witnesses and it appears that the allegation of torture and dowry were general and omnibus and since the place of residence of surviving appellants were different with that of the informant, their involvement in the offence is ruled out. Though, P.W. 1-Tulsi Mandal was declared hostile by learned trial court because he has not supported the prosecution case, but his statement has given picture of place of residence of the surviving appellants. Since I.O has not been examined in this case so as to corroborate this vital fact; the surviving appellants deserve benefit of doubt. Moreover, though altogether nine witnesses have been examined in this case and most of them were relatives of the deceased; however, six of them did not support the case of torture and dowry. It is reiterated that allegation of dowry demand has been made against father-in-law (now deceased) and also against mother-in-law and the husband who are not appellants in this case. It is also relevant to state that conviction of the surviving appellants for the offence under Section 306 IPC, ipso facto cannot be inferred that the same was due to demand of dowry or torture; rather it has to be proved that due to demand of dowry, the victim was depressed and committed suicide. In this regard, reference may be made to the case of 4 Mahavir Mahto @ Mahabir Mahto & Ors. Vs. State of Jharkhand and another reported in 2014 (2) JLJR 626, wherein the Coordinate Bench of this Court has held at Paragraphs 17 & 18, which reads as under: “17. In order to have answer to this question, I need not to travel far as the principle in this regard seems to have been laid down in a case of M. Mohan vs. State represented by the Deputy Superintendent of Police (supra) wherein Their Lordships have held that there should be clear mens rea to commit offence under Section 306. It requires commission of direct or active act by accused which led deceased to commit suicide seeing no other option and such act must be intended to push victim into a position that he commits suicide. 18. In the context of the said principle laid down by the Hon’ble Supreme Court it is to be seen as to whether the acts of the accused persons amount abetment. If the accused have allegedly put forth the demand of Rs.5 lac and on account of its non-fulfillment if the threat had been given of putting the deceased and others to all kind of trouble, the petitioners may not have any mens rea that on account of such threat the deceased would commit suicide as the acts alleged can never be said to be direct or active act by the accused which led the deceased to commit suicide and therefore, the act of the petitioners cannot be said to be an act of abetment in terms of Section 107 of the Indian Penal Code.” 7. Having regard to the discussions made hereinabove, the perversity in the judgment is apparent, inasmuch as, due to non-examination of I.O, the place of residence of the surviving appellants is not proved and in such type of cases where all relatives are not residing jointly then convicting them only on suspicion and surmises is not sustainable. Consequently, the instant appeal is allowed. Accordingly, the judgment of conviction and order of sentence dated 12.2.2004 & 13.2.2004, is hereby, quashed and set aside. 8. The appellants shall be discharged from the liability of their bail bonds. 9. Let a copy of this order be communicated to the trial Court and the Lower Court Record be sent to the court concerned forthwith. (Deepak Roshan, J.) jk