Pinku Paswan @ Kumar … v. The State of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No.708 of 2012 (Against the Judgment of conviction dated 16.05.2012 and order of sentence dated 22.05.2012, passed by learned District and Addl. Sessions Judge-II, Giridih, in S.T. Case No.161 of 2008. Pinku Paswan @ Kumar …. Appellant Versus The State of Jharkhand. ….. Respondent
Legal Reasoning
12. Having considered the submissions advanced on behalf of both the sides and the materials on record, there cannot be two views on the legal proposition argued on behalf of the appellant that unnatural death within 7 years is the principal ingredient of the offence under Section 304B IPC. The presumption under Section 113-B of the Evidence Act can be drawn only after there is unnatural death within 7 years and there was dowry demand soon before death. It has been held by Hon’ble the Supreme Court in the judgment reported in 2014 (4) SCC 54 that unless the unnatural death is established in the investigation, charge-sheet should not be submitted. In absence of proof of unnatural death, the learned Trial Court has committed egregious error of law to draw presumption under Section 113B of the Evidence Act. Post-mortem report, as stated above, is silent about the cause of death, and does not mention any poison found in the viscera. There is no evidence that the deceased suffered any physical injury. The deceased herself gave statement one day before her death in the Hospital in which she has not made any allegation against the appellant or his family 3 members regarding harassment or subjecting her to cruelty in reference to dowry demand. As such, the impugned judgment of conviction and order of sentence under Section 304 B IPC being not sustainable is set aside. Accordingly, the instant Criminal Appeal is allowed. The appellant is discharged from the liability of his bail bonds. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi. Dated 17th February, 2024. sandeep/
Arguments
P R E S E N T HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ….. For the Appellant For the State : : Mr. A. K. Kashyap, Sr. Advocate Mr. Bishwambhar Sashtri, APP ….. By Court:- Heard learned counsel for the appellant and learned counsel for the State. 1. The instant Criminal appeal is directed Judgment of conviction dated 16.05.2012 and order of sentence dated 22.05.2012, passed by learned District and Addl. Sessions Judge-II, Giridih, in S.T. Case No.161 of 2008 whereby the sole appellant has been convicted under Section 304 B IPC and sentenced to undergo RI for 7 years. 2. Appellant/ accused is the husband, was married to the deceased in the Month of July, 2007. Initially, there was congenial marital relationship, but after few months, the deceased is alleged to have been subjected to cruelty in reference to dowry demand of Colour TV, DVD, Almira, a Palang. On 09.01.2007 at 1 PM, a telephonic message was received from one Rajendra Mandal [who is friend of the informant] to the informant that his daughter was having bouts of vomiting and admitted for treatment to Sadar Hospital, Giridih. On the same day at 12.30 PM, when he reached the hospital, his daughter informed that her husband had brought a bottle of English wine in the night of 8th January, 2008 and was offered to her. It is alleged that the liquor was deliberately poisoned resulting into the death of her daughter. 3. On the basis of the aforesaid 'fardbeyan' of the informant, the Police instituted First Information Report being Giridih (T) P.S. Case No.10 of 2008 under Section 304-B Indian Penal Code against the appellant. 4. After investigation, charge-sheet was submitted against the appellant and he was put on trial for the offence under Section 304B IPC. 5. The prosecution has examined altogether eight witnesses and relevant document(s) including the dying-declaration of the deceased and the post-mortem report were adduced into the evidence. 6. The statement of the accused/appellant has been recorded under Section 313 Cr.P.C. and the defence is of innocence, but no defence evidence has been laid. 2 7. The statement of the deceased recorded in the Hospital has been marked as Exhibit-B on behalf of the defence. The signature of the Doctor over the said statement has also been proved and marked as Exhibit-A. 8. The impugned judgment of conviction and order of sentence has been assailed on the ground that unnatural death is the first and foremost ingredient of the offence of dowry death. In the present case, there is no direct or circumstantial evidence regarding unnatural death of the deceased. On the contrary, the post-mortem report has been adduced on behalf of the prosecution and marked as Exhibit-4 which does not disclose the reason for cause of death and has been stated that it could not be ascertained. The viscera for chemical examination was preserved, but the report of the same has not been received and brought on record. Further, the post-mortem report does not disclose any external or internal injury or sign of administering poison to the deceased. 9. It is further submitted that the statement of the deceased was recorded in the Hospital wherein she has not made any allegation against the appellant/ husband either regarding dowry demand or subjecting her to cruelty. It has been stated by her that she had consumed liquor along with her husband on the fateful night and she had never taken liquor before, therefore, after the drinking bout, she suffered dizziness and had vomiting. 10. On these materials, the allegation of administering poison in the liquor made by her father (informant) in the FIR as well as in his testimony is clearly falsified. 11. Learned APP for the State has defended the impugned judgment of conviction and order of sentence. It is submitted that the witnesses being P.Ws.3, 4 and 5 have deposed that the deceased was subjected to cruelty in reference to dowry demand of Colour TV, DVD etc. soon before her marriage.