The High Court
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1 IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Cr. Appeal (SJ) No. 1817 of 2003 (Against the judgment of conviction dated 22.11.2003 and the order of sentence dated 25.11.2003, passed by the learned Additional Sessions Judge, Fast Track Court-V, Giridih, in Sessions Trial No. 209 of 2001) 1. Somari Yadav 2. Bajo Yadav The State of Jharkhand Versus --------- ….. Appellants ….. Respondent CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Appellants For the Resp.-State --------- : Ms. Ruchi Mukti, Amicus : Mrs. Priya Shrestha, APP --------
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07/ 04.07.2023 Heard learned counsel for the parties. 2. The instant appeal is directed against the judgment of conviction and order of sentence dated 22.11.2003 & 25.11.2003, respectively, passed by the learned Additional Sessions Judge, Fast Track Court-V, Giridih, in Sessions Trial No. 209 of 2001; whereby the appellants were convicted under Sections 498A & 304 B of the IPC and sentenced to undergo rigorous imprisonment for seven years under Section 304 (B) of the Indian Penal Code and no separate sentence was passed under Section 498A of the IPC. 3. The prosecution case in brief is that on 06.02.2000, the daughter (deceased) of the informant-Tahlu Mahto, was killed by his son- in-law, mother-in-law and the brother-in-law (Bhaisur) on account of non- fulfillment of demand of dowry. 4. Learned counsel for the appellants made following submissions: (i) The presumption in regard to dowry death can be raised in terms of Section 113 B of the Indian Evidence Act, 1872 only if it is shown that soon before death, such woman had been subjected to cruelty or harassment for, or in connection with the demand of dowry. In the instant case, if the evidence led by the prosecution is examined, no case for conviction under Section 304B or 498A IPC can possibly be made out as none of the witnesses have stated that there was any harassment or cruelty to the deceased or demand of dowry immediately before her death. 2 (ii) There is no evidence in support of charge of demand for a bicycle and Rs.10,000/- by the husband and/or his family members, thus their conviction is utterly unsustainable and if allowed to stand would amount to travesty of justice. (iii) One of the essential ingredients of dowry death under Section 304B IPC is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the court will presume that the accused has committed the offence of dowry death. (iv) One material witness has not been produced by the prosecution in evidence. He is the person who according to the complainant is a resident of village Taridha, where the deceased used to live in her matrimonial home. He had informed the complainant about the death of his daughter. (v) Learned trial court failed to appreciate that the investigating officer of this case has not been examined which caused not only serious prejudice to the defense but also resulted in miscarriage of justice. 5. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellants. However, he fairly submits that as per record, there is no any criminal antecedents of the appellants; as such, if the sentence is modified, then the same should be modified in lieu of fine. 6. Having heard learned counsel for the parties and after going through the LCR it appears that the allegations against appellants are general and omnibus in nature and no specific allegations have been made against the appellants regarding torture for demand of dowry neither in the FIR nor in depositions. Further, there is no evidence in support of charge of demand for bicycle and Rs.10,000/- by husband and his family members. Further, P.W. 6 (an independent witness) at Para 15 and 16 in cross examination had stated that he had neither seen the accused persons assaulting the deceased nor any demand of dowry was made in his presence. Further, P.W.9, father of the deceased at para 3 and 4 had stated that his son-in-law-Somari Yadav (Appellant No.1) used to visit 3 frequently and ask for “Bidai” of his wife. He further stated that he had been telling him that he had no concern with the money; rather he had concern only with family (wife). Further, at para 11 and 12, he deposed that his daughter came to “naihar” from her in-law’s house three-four times before and every time Somari used to came for bidai and she never complained that time. He further deposed that whenever he went to his son- in-law’s house, the Appelant No.1 was hospitable. Further, it transpires from the record and the deposition of P.W. 8 and P.W. 9 that during the lifetime of deceased there was no complaint made before the Police for lodging any F.I.R regarding demand of dowry. Further, P.W. 1 (Doctor) has stated that no mark of violence was found. Ligature mark was ante-mortem in nature, no struggle mark or external injuries were found, toxicology report was not suggestive of any toxicity found in any of the visceral organ and viscera was not sent for chemical analysis. In his opinion cause of death was asphyxia as a result of hanging. However, the viscera were need to be presented for chemical analysis if needed. From the deposition of the above PWs it appears that one of the most important ingredients is missing in the instant case in order to bring the case under the net of 304B IPC, in as much as, it has not been proved that the appellants have subjected the deceased-wife to cruelty in connection with demand for dowry soon before her death and this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the court will presume that the accused has committed the offence of dowry death. 7. Coming to the charge u/s 498A IPC; as aforesaid, the allegations against appellants are general in nature and no specific allegations have been made against them qua offence u/s 498A IPC. No account was provided as to when and how she was tortured or harassed by the appellants. General and omnibus allegations, as is the case here, do not suffice to make a person liable under the said section. 8. In the case of Sak haram & anr. Vs. State of Maharashtra, reported in (2003) 12 SCC 368; the Hon’ble Apex Court held that mere omnibus statement regarding demand of money does not ipso facto make out a case under Section 498(A) IPC, rather the prosecution is required to 4 prove the overt acts attributed by the accused appellant beyond all reasonable doubts. It is not sufficient to merely say that deceased was subjected to torture or cruelty. The specific acts of omission or commission by the alleged offender has to be specifically proved. In absence of proof of such acts of omission or commission, the Court is not in a position to decide whether the conduct of accused amount to cruelty within the meaning of Section 498(A) IPC. Thus, the vague and exaggerated version of the family members of the victim cannot be accepted as a true version of the occurrence unless it is proved by other reliable facts and circumstances. 9. Tested on the judicially sketched parameters as above, this Court is of the opinion that the prosecution has failed to prove beyond reasonable doubt, cruelty or harassment to the deceased for or in connection with any demand for dowry as contemplated in either of the two provisions of the Code under which the appellants have been convicted. As a matter of fact, there is no clear, logical and persuasive evidence to prove the fact of killing. The appellants thus in view of the evaluation made hereinabove are entitled to the benefit of doubt. 10. Having regard to the discussions made hereinabove, the instant criminal appeal stands allowed. The judgment of conviction dated 22.11.2003 and the order of sentence dated 25.11.2003, passed by the learned Additional Sessions Judge, Fast Track Court-V, Giridih, in Sessions Trial No. 209 of 2001, are hereby, quashed and set aside. 11. The appellants shall be discharged from the liability of their bail bonds. 12. The Secretary, Jharkhand High Court Legal Services
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Committee shall reimburse Ms. Ruchi Mukti, learned Amicus on submission of bill(s) for this case @ Rs.5000/- per hearing subject to the maximum ceiling as per the applicable Notification. 13. Let a copy of this order be communicated to the trial court, the Secretary, Jharkhand High Court Legal Services Committee and also to the appellants through the officer-in-charge of concerned police station. 14. Let the lower court record be sent to the court concerned forthwith. Pramanik/ (Deepak Roshan, J.)