The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (S.J.) No.1800 of 2003 1. Charku Mahto 2. Dalo Devi 3. Mahru Mahto The State of Jharkhand -------- Versus --------- ..… Appellants ….. Opp. Party CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Appellants For the Opp. Party : : --------- Mr. Shailesh, Advocate Ms. Shweta Singh, A.P.P. --------- 07/02.05.2023 Pursuant to the notice of this court, report has been received to the effect that appellant No. 1 is dead and notice has been served upon Appellant No.s 2 and 3. 2. In view of the aforesaid report, the instant appeal stands abated against Appellant No.1- Charku Mahto 3. 4.
Legal Reasoning
Heard learned counsel for the parties. This criminal appeal is directed against the judgment of conviction and order of sentence dated 02.12.2003 passed by the learned District & Sessions Judge, Dhanbad in Sessions Trial No. 526 of 2002; whereby the appellants have been convicted and sentenced to undergo rigorous imprisonment for seven years for the offence punishable under Section 304 (B) I.P.C. 5. The prosecution case in brief is that an U.D. case was lodged on the basis of Fardbayan dated 02.01.2002 of Appellant No. 3 who is the husband of the deceased, who, as alleged by Appellant No. 3 in the Fardbayan, had committed suicide and during investigation of the case, I.O. of that case lodged another case as he found that the deceased got married to Appellant No. 3 two years before and just after one year of marriage, the appellants started demanding dowry and on 01.01.2002 the appellants refused to send her with her uncle on the ground of non-fulfillment of dowry and finally, parents of the deceased were informed that the deceased had committed suicide but later on during enquiry they came to know that the appellants had murdered their daughter by throttling her. 6. Learned counsel for the appellants made following submissions assailing the impugned judgment: -2- (i) It was never a case of dowry death since suicide by the deceased was proved beyond every shadow of doubt as all the independent witnesses have stated that the deceased had committed suicide, which was corroborated by the evidence of the doctor who further opined that nothing was found on the dead body to think otherwise. (ii) Cruelty was not proved beyond all shadow of reasonable doubt as all the independent prosecution witnesses stated that there was cordial relation between the appellants and the deceased and there was never any dowry demand from the side of the appellants. (iii) All the witnesses so examined were not declared hostile nor the prosecution made any attempt to discredit their version by challenging their truthfulness, veracity and integrity, thus, the prosecution admitted their statement to be true. (iv) Since the death was proved to be a suicide and the prosecution failed to prove cruelty immediately preceding death by any clear cogent and consistent evidence, there was no question of drawing a presumption u/s 113 B and there was no question of conviction u/s 304 (B) I.P.C. 7. Learned A.P.P opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellants. 8. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR, and looking to the comprehensive facts and circumstances of the case and the deposition of the prosecution witnesses, it appears that the allegations against appellants are general and omnibus in nature and no specific allegations have been made against the appellants in the FIR. P.W. 1 has not supported the prosecution version and deposed that there was no demand of dowry by the appellants and the deceased committed -3- suicide in a fit of anger, P.W. 2 (doctor who conducted post-mortem) deposed that the death of the deceased was caused due to hanging, further P.W. 3,4,5 and 6 did not support the prosecution version and deposed that the appellants never demanded dowry and the relation between the deceased and appellants were cordial. Further P.W. 7, 8 and 9 are the uncle, mother and father of the deceased, respectively and none of them have deposed as to when the demand of dowry was made or when cruelty was meted out to the deceased by the appellants. P.W. 11, who is the informant deposed that after 3-4 days of the death of deceased the family of deceased reported that the death was caused due to non- fulfillment of dowry. 9. As the prosecution is on the charge of the offences envisaged in Sections 304-B of the Code, the provision for references is extracted hereunder: “304-B. Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.—For the purpose of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. *** Thus, to bring a case under 304-B of the Code the essential ingredients of the offence need to be proved and the Hon’ble Apex Court in Baijnath v. State of M.P., (2017) 1 SCC 101 has laid down the ingredients of the offence. "25. Whereas in the offence of dowry death defined by Section 304-B of the Code, the ingredients thereof are: (i) death of the woman concerned is by any burns or bodily injury or by any cause other than in normal circumstances, and (ii) is within seven years of her marriage, and -4- (iii) that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of the husband for, or in connection with, any demand for dowry." 10. In the case at hand, the death of deceased was caused due to hanging as is clear from the deposition of the doctor and post mortem report and this certainly falls within the expression "death other than normal circumstance". From the deposition of PWs, it further transpires that death was caused within seven years of marriage. However, regarding proximity of time, prosecution has miserably failed to prove that the victim was subjected to cruelty in connection with demand of dowry soon before her death that is the third ingredient that soon before her death the deceased was subjected to cruelty or harassment by her husband or any relative of the husband for, or in connection with, any demand for dowry. Hon’ble Supreme Court in Rajeev Kumar v. State of Haryana, reported in (2013) 16 SCC 640 has held as under: “18. .........One of the essential ingredients of the offence of dowry death under Section 304-B IPC is that the accused must have subjected a woman to cruelty in connection with demand of 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 under Section 113-B of the Evidence Act. As this ingredient of Section 304- B IPC has not been established by the prosecution, the trial court and the High Court were not correct in holding the appellant guilty of the offence of dowry death under Section 304-B IPC." In the instant case also, from the deposition of the independent witnesses (P.W. 1,2,3,4,5,6) it clearly transpires that the relation between the appellants and deceased were cordial and that there was no demand of dowry. Further, the prosecution has failed to explain as to how P.W. 7,8,9 got the information that the -5- incident/case was of dowry death as they have not deposed if ever the deceased complained of any cruelty in relation to dowry. Even if the arguments of prosecution is taken as the Gospel Truth that the appellants demanded dowry and used to torture or harass the deceased; still the prosecution has miserably failed to prove that deceased was tortured for demand of dowry "soon before death". Since, the law is now no more res integra, inasmuch as, if prosecution fails to prove even one of the essential ingredients of the offence the offence will not be made out. As such, the learned Trial court was not correct in holding the appellants guilty of offence of dowry death under Section 304-B IPC. 11. Having regards to the aforesaid discussions, the prosecution has failed to prove beyond all reasonable doubts, cruelty or harassment to the deceased for or in connection with any demand for dowry as contemplated in the provision of the Code under which the accused persons have been convicted. Consequently, the conviction of the appellants on the basis of the materials on record is liable to be set aside. To reiterate, the prosecution has failed to prove the crucial ingredient of cruelty and harassment by direct and cogent evidence thereby disentitling itself to the benefit of the statutory presumption available under Section 113-B of the Act. The learned Trial Court based its determination substantially on presumptive inferences taking the aid of Section 113-B of the Act, divorced from the attendant facts and the evidence with regard thereto. I am thus of the opinion that the conclusions of the learned Trial Court do not constitute a plausible view on the materials on record and cannot be sustained. Accordingly, the appellants are entitled to the benefit of doubt, as such judgment of conviction and order of sentence dated 02.12.2003 passed by the learned District & Sessions Judge, Dhanbad in Sessions Trial No. 526 of 2002, is hereby, quashed and set aside. -6- 12. 15.
Decision
In the result, the instant appeal is allowed. The surviving appellants shall be discharged from the liability of their bail bonds. 16. Let a copy of this order be communicated to the trial court and also to the surviving appellants through the officer-in- Charge of concerned police station. 17. Let the lower court record be sent to the court concerned forthwith. sm/ (Deepak Roshan, J.)